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Maryland Family Law Update is a review of events as they affect the practice of domestic relations in law in the state of Maryland published by The Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
3 Child Advocacy: Benefits and risks of AI for CINA attorneys
The use of Generative Artificial Intelligence in the legal arena has proliferated recently; properly used, it can enhance the Child in Need of Assistance attorney’s tools to zealously advocate on a youth’s behalf
4 Cover Story: From bench to mediation table
Retired or senior judges who work as mediators emphasize that the roles of judge and mediator differ significantly -- and that the move from the bench to the mediation table requires an important shift in perspective.
6 In the News: Court affirmed in denying child’s name change request
The Montgomery County Circuit Court has been upheld in denying a request from an unmarried partner to change a child’s name after the couple had settled on the name when the baby was born.
7 Guest Column: When does a kid become an adult?
Not everyone grows up at the same pace, even though U.S. law holds that you reach adulthood when you turn 18. This is the age where you are treated like an adult in terms of criminal responsibility. However, states differ on the “civil age of majority,” which means that you don’t necessarily get all the rights and privileges reserved for grown-ups at that point.
8
In the News: Circuit court reversed in attorney’s fees disput
The Maryland Appellate Court has overturned a Montgomery County Circuit Court ruling that found that while a father lacked substantial justification for his legal position before the court for a period of three years it awarded mother only a portion of her attorney’s fees because of the parties’ relative financial status.
8 Monthly Memo
A Florida appeals court ruled that a state law that allows minors to get an abortion without their parents’ consent is unconstitutional. ... Kentucky’s Republican auditor sued Democratic Gov. Andy Beshear, asking a judge to untangle a dispute blocking the implementation of a state law meant to support adults who step up to care for young relatives who endured suspected abuse or neglect at home. … Fifteen-yearolds can’t get a driver’s license or vote in elections, but they can get married in Hawaii – one of a shrinking number of states that allows underage marriage. 9 Family
Law Digest
Child Advocacy
Benefits and risks of AI for CINA attorneys
The use of Generative Artificial Intelligence in the legal arena has proliferated recently; it can be used to enhance the Child in Need of Assistance attorney’s tools to zealously advocate on a youth’s behalf.
For example, consider the scenario where a CINA attorney needs to explain the concept of a permanency plan to her client. The conversation will be different depending on whether the attorney represents a 5-year-old, 10-year-old, or 15-year-old.
Generative AI can assist a CINA attorney by offering different ways to explain this legal concept, that the attorney can then adjust and refine, based on the needs of their client.
For example, the following query to ChatGPT - “Provide an explanation for the definition of a permanency plan in the context of child welfare law to a 5-year-old child,” yielded the following:
“A permanency plan is a grown-up plan to make sure you have a safe, loving home where you can stay and be taken care of - either with your family or someone else who loves you. Grown-ups make the plan so you don’t have to worry about where you live or who will take care of you.”
When the query was changed to a 10-year-old, the response was slightly different:
“A permanency plan is a plan that helps decide where you will live long term and who will take care of you. The people working on your case, like your lawyer, social worker and the judge, talk with your family and others to figure out what’s best for you. The plan could be for you to go back home, live with a relative, be adopted or to stay in foster care with a special adult who takes care of you. the goal is to help you feel safe and have a home that doesn’t keep changing.”
For a 15-year-old, Chat GPT
TAMALA E.
Child Advocacy LUNN
provided:
“A permanency plan is a legal plan the court and your team make to figure out where you’ll live permanently and who will take care of you long term. It’s about creating stability so that you’re not bouncing around. The plan can be to return to your parents, live with relatives, be adopted, or stay in care until you are an adult. You should have a voice in this, your wishes matter and the goal is to make sure you’re safe, supported and have the best chance for a solid future.”
However, it is important to note the pitfalls other attorneys have experienced when using this platform and why. Here are a few cautionary tales of lawyers misusing AI.
Roberto Mata sued Avianca Airlines for injuries he sustained when a metal serving cart struck his knee during a flight to Kennedy International Airport, The New York Times reported. Avianca filed a Motion to Dismiss based on the statute of limitations. Mata’s attorneys filed an opposition, citing cases invented by ChatGPT.
Mata’s lawyer was fined $5,000 for using fake citations. The federal judge who presided over this case appropriately stated, “An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system,” according to the MSBA Blog post by Pamela Langham last year.
In another example, a Florida lawyer filed four pleadings with 26 problematic citations, including a citation that did not match the name of the case, a misrepresented holding, and a cite that could not be found, Langham wrote.
As a result, the lawyer was suspended for one year, prohibited from taking any new cases, and was required to attend and complete several courses as well as pay fines.
In addition to providing erroneous or “inventing information,” there is the danger that AI will use confidential information to respond to inquiries and the possibility that a client’s confidential information may be used by AI to learn and adapt over time.
To protect client data, lawyers should consider sanitizing any client identifiable data before inputting it into an AI program.
Among other safeguards, lawyers should conduct reference checks on potential AI vendors, carefully examine an AI vendor’s security protocols, including storage security, consult with cybersecurity professionals, inquire about an AI vendor’s hiring practices, and ensure that confidentiality agreements are in place with any third-party AI vendor.
A CINA attorney can use AI in beneficial ways, without citing to hallucinated cases or disclosing personal information. Generative AI can be not only a timesaver but also can provide the CINA attorney with information that can be modified based on the needs and circumstances of a client.
In addition to formulating different ways to explain legal concepts, AI can be a tool for streamlining repetitive tasks such as creating templates for discovery requests, form letters to schools requesting information, and letters to caregivers.
In sum, AI is a tool that, with due diligence and keeping in mind rules on confidentiality, CINA attorneys can use effectively when advocating.
Tamala E. Lunn is a staff attorney at Maryland Legal Aid.
By Hope Keller
Special to The Daily Record
From bench to mediation table: Judges
learn not to ‘jump in and fix it’
Retired or senior judges who work as mediators emphasize that the roles of judge and mediator differ significantly -- and that the move from the bench to the mediation table requires an important shift in perspective.
Judge Diane Leasure, a former circuit administrative judge for the 5th Judicial Circuit (Anne Arundel, Carroll and Howard counties) who retired from the bench in 2011, said judges and mediators listen differently.
“When you’re on the bench you’re listening to get the information you need in order to make a decision in a case,” said Leasure, who has her own dispute resolution firm. “In a mediation you’re not making a decision, you’re facilitating conversations to see if the parties can reach an agreement. You’re listening, I think, for what people are saying but also listening to what they’re not saying.”
In fact, Leasure said the hardest part of the transition from judge to mediator was learning to listen and “not just jump in and fix it.”
“I think that does take a little bit of transitioning just to get used to that because it is definitely a different role and a different function than being on the bench and deciding a case,” Leasure said.
Judge Steven Salant, who retired from the Montgomery County Circuit Court in 2022, emphasized that it was up to the couples in family law cases to craft an agreement that works for them.
“I tell them that the only way that anything gets done is with their approval,” Salant said. “I also tell them that I’m not here to judge their case;
SUBMITTED
“I tell them point-blank that one of the things they are trying to avoid in mediation is the uncertainty of a court and also, of course, the cost of a trial,” says retired Montgomery County Circuit Judge Steven Salant.
I’m here to tell them what I think about the issues, what I think about what could possibly happen –- but that I’m not 100% certain of any prediction because things happen in court all the time.”
Continued Salant: “In fact, I tell them point-blank that one of the things they are trying to avoid in mediation is the uncertainty of a court and also, of course, the cost of a trial.”
Salant, who does private mediation and mediations ordered by the Montgomery County court -– and who also hears cases around the state as a senior judge -– said the skills that transfer from the bench to mediation primarily concern the analysis of a case.
“I let people know that these are issues that I have not only been familiar with, but that I’ve dealt with in hundreds of cases,” he said. “So I look at a case and I go, ‘Let’s see, this is a three-year marriage and you want indefinite alimony. That’s an easy one: It’s not happening.’”
Judge Joan Ryon, who retired from the Montgomery County Circuit Court in 2024, said some couples particularly want a judge as a mediator.
“People come to a judge usually because they do want a little bit more guidance than they would get from a pure mediator who’s just trying to find middle ground and isn’t really offering up suggestions,” said Ryon, who handles post-judgment matters for the Montgomery County court
PHOTO
SUBMITTED PHOTO
“People come to a judge usually because they do want a little bit more guidance than they would get from a pure mediator who’s just trying to find middle ground and isn’t really offering up suggestions,” says retired Judge Joan Ryon.
and who also does private mediation.
She acknowledged that there are times when it’s hard to remain neutral.
“There are those moments in the process where you really want to cross back into the judge role and say, ‘Look, you’re not getting this, it’s not going to happen,’ but you’re always trying to be mindful that isn’t the role you’re in now,” Ryon said.
In such situations, Ryon said, the parties’ attorneys will frequently step in.
“They’ll say something along the lines of, ‘You know, judge, I know you can’t predict the future, but what do you think is likely to be the outcome?’” Ryon said. “That’s when I’ll share and say, ‘Well, I think this would be a reach and not a very likely outcome of the case.’”
SUBMITTED PHOTO
“In a mediation you’re not making a decision, you’re facilitating conversations to see if the parties can reach an agreement,” says Judge Diane Leasure, a former circuit administrative judge.
Ryon, who also serves occasionally as a senior judge, tells mediation clients about the workings of the court, describing how it assigns and prioritizes cases when there are more cases than judges.
“I can pretty confidently tell (clients) that … if we don’t resolve this now you are not looking at a resolution in two months, probably you may be looking at a resolution in nine,” Ryon said. “I find that it’s really helpful to be able to bring in the practical insider perspective about how this case will even move through the system.”
Family law attorney Mary Sanders, of Turnbull, Nicholson & Sanders in Towson, said she enjoys working with judges as mediators because they are not shy about saying what will fly in court and what won’t.
“It’s very powerful having a former judge say (that) because these judges definitely know, and not only do the attorneys who represent the clients who are in mediation respect the judges, the parties do as well,” said Sanders, who added that her firm mediates nearly every case it litigates.
Attorney Jessica Markham, of Markham Law Firm in Bethesda, said attorneys often rely on judges as mediators to level with clients if, for example, their case isn’t strong or they don’t seem like a good witness.
“Generally speaking, attorneys and parties are not seeking out a judge because they’re going to get you to sing Kumbaya,” Markham said. “People are like, ‘Give me an opinion.’”
In the News
Court affirmed in denying child’s name change request
Daily recorD staff
The Montgomery County Circuit Court has been upheld in denying a request from an unmarried partner to change a child’s name after the couple had settled on the name when the baby was born.
The Maryland Appellate Court found that the circuit court did not err when it denied the petition. No extreme circumstances were present in this case, and the court correctly considered each appropriate factor when it concluded a name change was not in the child’s best interest, the appeals court said.
The case is In the Matter of Bodhi Sico Becker, No. 0332, Sept. Term, 2024 (filed May 2, 2025) (Judges Graeff, BERGER, Kehoe).
FACTS: Bodhi Sico Becker was born in 2020 to Colleen Sico and Ashley Becker. Although Ms. Sico and Ms. Becker remained unmarried, they both signed the baby’s birth certificate naming him Bodhi Sico Becker.
In 2022, the couple separated, having never been married. Ms. Sico raised the issue of Bodhi’s name, seeking to hyphenate his last name to include both the women’s surnames. Unable to reach an agreement, Ms. Sico filed a petition seeking to change Bodhi’s name to Bodhi Joseph Sico-Becker. The circuit court determined that Ms. Sico and Ms. Becker had agreed on Bodhi’s name at the time of his birth and, applying both the best interest of the child standard and the extreme circumstances standard, denied Ms. Sico’s petition.
LAW: Where the alteration of a child’s name is concerned, Maryland recognizes two distinct situations. The first exists when both parents agreed to the child’s name at the time of birth. Such cases are referred to as “change of name” cases. The second name change scenario arises when there was never an agreement between the child’s parents as to the name of the child.
In a “no name” case, in which the parties never agreed to the child’s
THE DAILY RECORD/FILE PHOTO
The Maryland Appellate Court said the circuit court correctly evaluated appropriate factors when it concluded that the requested name change was not in the child’s best interest.
name, the court must conduct a pure best interest of the child analysis to determined which name should be given to the child. In this way, the court avoids placing a burden of proof on either party, both of whom enjoy the equal right to name their child. This test alone guides this determination.
In a “change of name” case, wherein the parents agreed to the child’s name at the time of birth, a court must engage in both a best interest analysis and, even if the name change is in the child’s best interest, continue to an extreme circumstances analysis before approving any change to the child’s present name. Best interest in such a situation is not independently sufficient to warrant changing a name that both parents agreed to at the child’s birth.
Alternatively, if a court finds that extreme circumstances exist to change the child’s name, it is still incumbent upon the court to conduct a best interest analysis to ensure that, notwithstanding the extreme circumstances, it is also in the child’s best interest to change the name. In this way, extreme circumstances alone are also not
sufficient to support the change of a child’s name when the parents mutually agreed upon that name.
Here, the circuit court did not abuse its discretion in determining that Ms. Sico and Ms. Becker did have an agreement regarding Bodhi’s name at the time of his birth. Both parents were present at the birth of the child and both parents signed the birth certificate indicating the name Bodhi Sico Becker. They had also previously discussed the name, jointly announced the name to their friends and family and filed legal documents bearing the child’s name.
The court did not abuse its discretion in finding, based on the facts presented, that no extreme circumstances were present in this case. Similarly, in its best interest analysis, the trial court correctly considered each appropriate factor and found that no facts supported the contention that a name change was in Bodhi’s best interest.
Judgment of the Circuit Court for Montgomery County affirmed.
When does a kid become an adult?
By JonatHan B. santo
Not everyone grows up at the same pace, even though U.S. law holds that you reach adulthood when you turn 18. This is the age where you are treated like an adult in terms of criminal responsibility. However, states differ on the “civil age of majority,” which means that you don’t necessarily get all the rights and privileges reserved for grownups at that point.
For example, U.S. citizens may vote or get a tattoo without their parents’ consent when they’re 18, but they can’t legally buy or consume alcohol until their 21st birthday. Young Americans are subject to extra restrictions and fees if they want to rent a car before they’re 25 – even if they got a driver’s license when they turned 16 and have been earning a living for years.
Even physical signs of maturity don’t provide an easy answer to this question. Puberty brings about physical changes associated with adulthood like facial hair or breast development. It also marks the onset of sexual maturity – being able to have children.
Those changes don’t happen at the same time for everyone.
For example, girls typically start going through puberty and beginning to look like adults at an earlier age than boys. Some people don’t look like grown-ups until they’re well into their 20s.
In my view, as a professor of developmental psychology, what really matters in terms of becoming an adult is how people feel and behave, and the responsibilities they handle.
Because everybody is unique, there’s no standard timeline for growing up. Some people learn how to control their emotions, develop the judgment to make good decisions and manage to earn enough to support themselves by the age of 18.
Others take longer.
Coming of age also varies due to cultural differences. In some families, it’s expected that you’ll remain financially dependent on your parents until your mid-20s as you get a college education or job training.
Even within one family, your personality, experiences, career path and specific circumstances can influence how soon you’d be expected to shoulder adult responsibilities.
Some young people technically enter adulthood before they turn 18 through a process called “emancipation” -– a legal status indicating that a young person is responsible for their own financial affairs and medical obligations.
Economic independence is hard to attain for young teens, however, because child labor is restricted and regulated in the U.S. by federal law, with states setting some of these rules. States also determine how old you have to be to get married. In most states, that’s 18 years old. But some states allow marriage at any age.
Differentiating between kids and adults
Understanding the differences between how children and adults think can help explain when a kid becomes an adult.
For example, children tend to think concretely and may struggle more than adults with abstract concepts like justice or hypothetical scenarios.
Kids and teens also have shorter attention spans than adults and are more easily distracted, whereas adults are generally better at filtering out distractions.
What’s more, children, especially little ones, tend to have more trouble controlling their emotions. They’re more prone to crying or screaming when they are frustrated or upset than adults.
One reason why being fully grown up by the time you turn 18 or even 21
might not be possible is because of our brains. The prefrontal cortex, which is a part of the brain that plays a crucial role in planning and weighing risks, doesn’t fully develop in most people before their 25th birthday.
The delay in the brain’s maturity can make it hard for young adults to fully consider the real-world consequences of their actions and choices. This mismatch may explain why adolescents and people in their early 20s often engage in risky or even reckless behavior – such as driving too fast, not wearing a seatbelt, using dangerous drugs, binge drinking or stealing things.
Despite the medical evidence about the late maturation of the brain, the law doesn’t provide any leeway for whether someone has truly matured if they’re accused of a breaking the law. Once they’re 18 years old, Americans can be tried legally as adults for serious crimes, including murder.
These still-developing parts of the brain also help explain why children are more susceptible to peer pressure. For instance, adolescents are more prone to confess to crimes they didn’t commit under police interrogation, partly because they can’t properly weigh the long-term consequences of their decisions.
However, there are benefits to adolescents’ having a higher tolerance to risks and risk-taking. This can help explain why many young people are motivated to engage in protests regarding climate change and other causes.
Jonathan B. Santo is a professor of psychology at University of Nebraska Omaha. This article is republished from The Conversation, an independent and nonprofit source of news, analysis and commentary from academic experts.
In the News
Circuit court reversed in attorney’s fee dispute
Daily Record staff
The Maryland Appellate Court has overturned a Montgomery County Circuit Court ruling that found that while a father lacked substantial justification for his legal position before the court for a period of three years it awarded mother only a portion of her attorney’s fees because of the parties’ relative financial status.
The case is George v. Bimbra, No. 1444, Sept. Term, 2024 (filed May 6, 2025) (Judges WELLS, Ripken, Eyler).
FACTS: In December 2021, mother filed a motion to modify legal custody. After a trial, the circuit court granted primary physical and sole legal custody of the child to mother. The court also found father lacked substantial justification for his legal position before the court from December 2021 to the date of trial in December 2024. Mother sought $622,095.12 in attorney’s fees, $31,108.60 of which mother incurred from the trial alone.
Pursuant to Maryland Code Annotated, Family Law Article, or FL, § 12-103(c), the court found good
Florida appeals court rejects law allowing minors’ abortions without parental consent
A Florida appeals court ruled that a state law that allows minors to get an abortion without their parents’ consent is unconstitutional.
A three-judge panel of the Fifth District Court of Appeal found that the state’s judicial waiver law violates parents’ Fourteenth Amendment rights to due process, citing the state’s parental rights laws, a recent ruling by the Florida Supreme Court and the landmark
cause to not order father to pay the entirety of mother’s attorney’s fees. Accordingly, the court ordered father to pay mother $295,493.26—half of the attorney’s fees mother incurred prior to trial. Mother then filed a motion to revise, seeking, in relevant part, an increase in her attorney’s fees award to $590,986.22—the attorney’s fees mother incurred prior to trial. The court denied mother’s motion.
LAW: Good cause under FL
§ 12-103(c) means a substantial reason to not award a party all of their reasonable attorney’s fees if the court finds the other party did not have substantial justification for prosecuting or defending the proceeding. The court in this case found “the parties’ relative financial status and the fees and expenses incurred by both sides” constituted good cause to not award mother all of the attorney’s fees she requested.
The circuit court abused its discretion in finding parties’ relative financial status and relative fees and expenses incurred constitute good cause under FL § 12-103(c) because
such finding is inconsistent with the purpose of FL § 12-103(c) to limit judges’ discretion in awarding attorney’s fees when a party lacks substantial justification in prosecuting or defending a claim, as well as contrasts with relevant case law. Accordingly, the court vacates the court’s award of attorney’s fees and remands for the court to reconsider whether good cause exists to not award mother all of her reasonable attorneys’ fees.
The court must not factor father’s financial circumstances relative to mother’s, or father’s attorney’s fees relative to mother’s, in its reconsideration. The court may, however, consider the reasonableness of mother’s attorney’s fees, “taking into account such factors as labor, skill, time, and benefit afforded to” mother.
The court may also consider other factors consistent with this court’s definition of good cause under FL § 12-103(c).
Judgment of the Circuit Court for Montgomery County vacated and remanded.
Monthly Memo
2022 U.S. Supreme Court decision that stripped away federal abortion rights.
The three-judge panel sided with arguments made by state Attorney General James Uthmeier and ruled against a 17-year-old girl who is nearly six weeks pregnant and wants an abortion without the knowledge or consent of her father.
Associated Press
Kentucky auditor sues governor to end dispute blocking kinship care law
Kentucky’s Republican auditor sued Democratic Gov. Andy Beshear, asking a
judge to untangle a dispute blocking the implementation of a state law meant to support adults who step up to care for young relatives who endured suspected abuse or neglect at home.
The standoff revolves around whether funds are available to carry out the law’s intent — enabling relatives who take temporary custody of children to later become eligible for foster care payments.
Beshear signed Senate Bill 151 in April 2024 but warned at the time that lawmakers had not approved the necessary funding.
Associated Press
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE COURT OF SPECIAL APPEALS: FULL TEXT UNREPORTED OPINIONS
The Appellate Court affirmed the Washington County Circuit Court’s child support award. Although mother argued the child support award should have been retroactive to February 2020, instead of July 2023 as ordered by the circuit court, the court provided an in-depth explanation for the declination to award retroactive support to the February 2020 date.
The Appellate Court affirmed the Baltimore County Circuit Court’s child support award. While the circuit court did not explain how it arrived at its $4,000 per month child support award, it is evident that, to some extent, it split the difference between what each party contended at trial would be an appropriate award.
The Appellate Court affirmed the Howard County Circuit Court’s monetary award. The circuit court thoroughly considered financial documents timely submitted by wife. It ultimately determined that the amount of unaccounted-for marital funds (approximately $300,000) warranted granting a monetary award to husband in the amount of $75,000. This award mitigated unfairness in property distribution.
The Appellate Court vacated the Prince George’s County Circuit Court’s division of marital property and the monetary award, as well as related rulings on the claims for alimony, transfer of an ownership interest in property, child support and counsel fees. Further, the trial court’s refusal to entertain any request for a continuance because one party (or both parties) arrived late, and its insistence that the parties present evidence on all issues within an unreasonably restricted time, was not a proper exercise of discretion
RECONSIDERATION; MAGISTRATE; ORDER
Jose D. Martinez Lazo v. Dicsi E. Bonilla Mendez
No. 1605, September Term 2022
Argued before: Kehoe, Tang, Zic
Opinion by: Kehoe, J
Filed: Mar. 13, 2025
The Appellate Court remanded the appeal to the Prince George’s County Circuit Court to consider husband’s motion for reconsideration. Although the magistrate filed a memorandum “hereby denying” husband’s motion, a judge never signed or issued an actual order denying the motion.
The Appellate Court affirmed the Montgomery County Circuit Court’s division of marital property, child support and alimony determinations. The court discerns no error, abuse of discretion or other grounds for relief from the divorce judgment
The Appellate Court affirmed the Baltimore County Circuit Court’s $2,258,646.13 monetary award, indefinite alimony in the amount of $20,000 per month and $188,667.22 in attorney’s fees to wife.
The Appellate Court vacated the Baltimore County Circuit Court’s child support order. It erred by not including mother’s work-related childcare expenses in its calculation of child support.
The Appellate Court vacated the Montgomery County Circuit Court’s award of sole legal and primary physical custody of the minor child, whom the court had adjudicated as a child in need of assistance, to father. There was an existing custody order entered by a court in Texas. As such, before issuing what amounted to a modification of the Texas court’s custody order, the juvenile court was required to “communicate with the court [in Texas] to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”
The Appellate Court affirmed the Anne Arundel County Circuit Court’s marital property and monetary awards. The circuit court’s finding that that the home was entirely marital property was not clearly erroneous. And based on the circuit court’s finding of dissipation, it did not err in calculating the monetary award by using the value of husband’s bank account at the time of the parties’ separation.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Washington County Circuit Court’s child support award. Although mother argued the child support award should have been retroactive to February 2020, instead of July 2023 as ordered by the circuit court, the court provided an in-depth explanation for the declination to award retroactive support to the February 2020 date.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case regard a contentious and persistent dispute between Mother and Father relating to child access and child support of two of the parties’ minor children, J. and P.3 We also note at the outset that, although Mother did not appeal the court’s child access determination, certain facts regarding child access are pertinent to the analysis and will be incorporated as needed.
Divorce and Initial Determination of Child Access and Child Support
This case arises out of a longstanding child access and child support dispute between appellant Maria Pellico (“Mother”) and appellee Timothy Wolford (“Father”), regarding two of their children.1 The parties were granted a divorce via consent in 2013. Subsequently, the Circuit Court for Washington County twice declined to award child support to either parent; in the first instance, as part of the judgment of absolute divorce, and in the second instance, in 2015 after the parties sought modification. Between 2020 and 2021, the parties sought another modification of child access and child support. The circuit court held a six-day trial on the merits. In June of 2023, via a memorandum opinion and order, the court modified the child access determination and reserved ruling on child support and other associated issues until a later time.
On February 21, 2024, the circuit court entered an order (“the 2024 Order”) regarding child support. Mother noted this timely appeal of the 2024 Order, and raises three issues, which we rephrase as follows:2
I. Whether the circuit court committed an abuse of discretion regarding the date from which it ordered retroactive child support should begin.
II. Whether the circuit court committed an abuse of discretion in ordering Father’s payment of the child support obligation through direct pay rather than an earnings withholding order.
III. Whether the circuit court committed an abuse of discretion in ordering a child support review hearing. For the reasons to follow, we shall affirm the circuit court.
In January of 2013, Mother and Father were granted a divorce via consent. The judgment of absolute divorce incorporated, but did not merge, a custody agreement regarding the parties’ children. The court awarded joint legal custody of J. and P. to Mother and Father. Regarding physical custody, the court ordered that the children would be primarily with Mother, and that Father would have access two out of every three weekends.
The court also ordered that during Mother’s weekends with J. and P., Father would have the children for one overnight per week.
Regarding child support, the court ordered that “neither party shall have an obligation of child support at this time, with the present obligation being de minimis, as reflected on the Maryland Child Support Guidelines[.]”
First Modification of Child Access and Child Support
In 2014, the issues of child access and child support were revisited after Mother and Father filed motions for modification of child access, contending that there had been a material change of circumstances. The court held a hearing over multiple days. In August of 2015, following the hearing, the court issued a memorandum opinion and order (“the 2015 Opinion” and “the 2015 Order”), modifying the child access schedule as to J. and P.
The court maintained its previous ruling of joint legal custody; however, Father wasawarded tiebreaking authority. Additionally, the court modified the child access plan to “50/50.” Based on the evidence presented, the court found that Mother “regularly and consistently refused to work with [Father] to allow him access to [J. and P.].” The court noted that [d] espite their agreement to joint legal custody, [Mother] has unilaterally, as documented by the emails as well as her testimony, declined to include [Father] in important education and medical decisions
regarding the children. She has unilaterally changed visitation without explanation to [Father] when it suited her purposes. She has almost uniformly denied any request by [Father] for any slight modification or adjustment to the current court order.
The court indicated that the examples of Mother unilaterally changing or altering visitation documented in the emails is “apparent . . . and the incidences are too numerous to mention.” The court ordered that Father would have physical custody of J. and P. every Sunday night through Tuesday morning; that Mother would have physical custody of J. and P. every Tuesday night through Friday morning; and that Mother and Father would alternate weekends. The 2015 Opinion and Order also expounded upon other child access concerns, including holidays, summer vacations, and other breaks from school.
The court declined to order child support, subject to a material change of circumstances, particularly regarding the incomes of either party. In making this decision, the court briefly reviewed the incomes reported by Mother and Father. The court noted that both parties were then temporarily unemployed; accordingly, the court attributed incomes to both parties, but noted that because the “target [was] moving,” making a more detailed finding would be “difficult” and akin to “guessing the incomes of both parties[.]”
Second Modification of Child Access and Child Support
Between the end of 2015 through early 2020, the discord between Mother and Father had temporarily calmed, as no new modifications were requested. On February 24, 2020, Father filed a motion to modify child access. Father alleged that since the 2015 Opinion and Order, Mother had “engaged in a series of behavior[s] that aimed at alienating” him from J.’s and P.’s lives. Father noted that Mother was again refusing— beginning February 16, 2020—to return the children to Father, nor would she allow telephone contact between the children and Father, despite his numerous requests. The crux of Father’s contentions was that despite the 2015 Opinion and Order— which acknowledged Mother’s struggles to work with Father and her alienation of Father from J. and P.—Mother consistently refused to work or communicate with Father and often made unilateral decisions regarding J. and P. without informing him. In the prayer for relief, Father requested that he be “awarded immediate primary physical and sole legal custody of the minor children of the parties[, and] that child support be recalculated” in accordance with the Maryland Child Support Guidelines (“the Guidelines”).
In March of 2020, Mother filed a response to Father’s motion for modification and requested the same relief as Father: that she be awarded primary physical custody and sole legal custody of J. and P. Mother also requested that Father pay child support. The court held Father’s motion for the modification of child access and request for child support sub curia until the merits hearing. While the motion was held sub curia, the parties litigated over best interest attorneys for J. and P. and courtordered therapeutic services.
On March 9, 2021, as the merits hearing was approaching, Mother filed a motion for modification of custody.4 Mother contended that J. and P. had “expressed various issues and
concerns with respect to the shared custody arrangement, [Father], [Father’s] home[,] and have, accordingly, indicated, and continue to indicate, a strong desire to be in the primary custody of [Mother].” In her prayer for relief, Mother requested that child support be awarded pursuant to the Guidelines. The matter proceeded to trial in 2023.5
The June 2023 Memorandum Opinion
In June of 2023, the circuit court issued a thirty-eight-page, detailed memorandum opinion and an eighteen-page order (“the 2023 Opinion” and “the 2023 Order”). The sole focus of the 2023 Opinion was the child access dispute. The circuit court made numerous factual findings, which we summarize here, in categories.
The first set of findings regarded the precipitous disruption to Father’s child access. The circuit court found that Father went from spending three to four days per week with J. and P., to having no contact for six months, from February to August of 2020. The court observed that Father was “extremely worried” about J. and P. The court discerned that although Father made efforts to obtain information or bridge the gap in contact with J. and P., these efforts were perceived by Mother as “aggressive and unreasonable.”
Another set of findings pertained to J.’s attention deficit disorder (“ADD”) diagnosis, 504 plan,6 and medication regimen. The circuit court found that J. took medication and had additional support at school under a 504 plan for his ADD diagnosis. The court noted that Father “was never given a fair opportunity to consult [with J. or Mother] on the topic before the [medications] started[.]” The court found that Mother closed Father out of the discussion and out of decisions pertaining to the medication, the 504 plan, and other schoolrelated matters for J. The court observed that Mother, “in a rigid and unwavering fashion, just ignored [Father’s] right to engage in the discussion and his tie-breaking authority[.]” The court indicated that Father’s lack of information and understanding regarding J. “and his 504 accommodations had a cumulative negative effect on his relationship with [J.]” Further, the court found that Mother’s pattern of shutting Father out of discussions and decisions on this topic “began to erode [J.’s] confidence in his Father’s engagement with these issues.”
The next category of findings concerned how J.’s struggles with Father regarding his ADD diagnosis affected P.’s relationship with Father. The circuit court found that P.’s relationship with Father had deteriorated due to the “collateral damage” of J.’s frustrations with Father related to the ADD concerns. The court observed that while there was less of an impact on P.’s relationship with Father, P.’s contact was diminished because Mother, and by extension, J. and P., were convinced that J. and P. “were, and should be, a ‘package deal.’” The court found that J. “should never have been given the responsibility of directing and diminishing” P.’s relationship with Father.
Another category of findings regarded Mother’s behavior, particularly the behaviorshe modeled for J. and P. as children who were maturing and learning to have adult-like relationships. The court found that “there was some either intentional or unintentional influence by [Mother] over [J.]
particularly, but also over [P.]” The court observed thatMother “abdicated her parental role” by failing to encourage J. and P. to maintain relationships with Father. The court indicated that Mother “talks a good game” regarding a desire to support J.’s and P.’s relationship with Father, “however, her actions showed a distinct lack of commitment to that goal.” Further, the court noted that Mother could have d the time that she kept J. and P. from Father as an opportunity to teach them “the positive relationship skills of expressing frustration in a constructive fashion” to Father. The court noted further that instead, Mother “taught or at least reenforced” to J. and P. that it is acceptable to disengage from parental relationships, “cut off contact for long periods, and then engage minimally in the future.” The court indicated that Mother could have taught J. that walking away from his relationship with Father “instead of constructively dealing with frustrations,” was a poor decision, and that instead, J. and P. should have been “taught communication skills, and to approach resolution of challenges respectfully and calmly[.]” The court recognized that when it appeared that J. “wanted to create a home base in his Mother’s home,” rather than take a direct approach and raise that issue with Father or with the court, Mother “vilified [Father] for not handling [J.’s] frustrations the way [Mother] would have handled them, and she simply allowed [J.’s] frustrations on objectively small and fixable issues to cause a rejection of all contact with [Father].”
Regarding the relationship between Mother and Father, the court noted that Mother and Father “both blame the other completely for everything that has gone wrong. Both view themselves as the reasonable one.” The court found that the “parties’ relationship was toxic, volatile, and damaging to both of their psyches[,]” and that the parties brought out the worst in each other.
Finally, regarding a plan for P., the court noted that P. had “settled into a home base” with Mother and that P. felt strongly about maintaining that home base. 7 The court found that P.’s desire was a reasonable one.
In the 2023 Order regarding these findings, the court ordered that P. would primarily reside at Mother’s home, spend alternating weekends between Mother and Father, and spend one night each week with Father from 4:00–9:00 p.m. The court also addressedadditional scheduling concerns relating to child access, including holidays, vacation, and communication between Mother and Father. At the conclusion of the 2023 Order, the court stated that “the [c]ourt’s child support order and associated issues, as well as a ruling on the request for counsel fees[,] will be entered on a later date.”
The 2024 Order
In February of 2024, the circuit court had not entered a ruling regarding the open issues of child support and counsel fees. Mother filed a motion requesting a status conference, stating that over seven-and-a-half months had elapsed since the circuit court’s entry of the 2023 Opinion and Order, and that she was “in need of immediate resolution of the issues.” In response, the circuit court entered the 2024 Order on February 21, 2024, regarding child support and counsel fees, and an attachment
with endnotes, which explained aspects of the 2024 Order in further detail.
Relevant to this appeal are three provisions of the 2024 Order. First, the circuit court awarded Mother child support. The court ordered that “accruing from July 1, 2023”—the first month after the 2023 Order—“[Father] shall pay child support directly to [Mother]”in the monthly amount of $1,502.00 per month. The court found that “pursuant to Maryland Family Law Code Annotated 10-123(d)(1) or (2) [there was] good cause to not issue an immediate earnings withholding order[,] and therefore an earnings [withholding] order” was not authorized.
Second, the circuit court awarded Mother eight months of retroactive child support starting on July 1, 2023, resulting in a child support arrearage of $12,016.00.8 The court declined to award retroactive child support from February 2020 through June 2023 because to hold otherwise “would be inequitable and would create a windfall for a parent who inappropriately manipulated children into abandoning a court-ordered structure because it suited her.” In making this determination, the court considered the findings from the 2023 Opinion and Order, and specifically, “what leverage each party had to avoid three years of litigation and damage to the children.” The court found that Father could not have avoided litigation—as he was cut out of both of J.’s and P.’s lives and he was not in a position to walk away from the litigation unless he were to abandon his relationships with J. and P.—but that Mother could have.
Third, the circuit court ordered that based upon the [c]ourt’s understanding of the evidence, that [Mother’s] twins[9] will be eligible for public prekindergarten this fall [or private daycare] as they will be preschool age 4, as of September 1, 2024. These young children attaining this age is an event that will trigger a reevaluation of child support, as this would normally trigger a change in [Mother’s] employment status. Therefore, the court is setting a zoom . . . child support review hearing for October 7, 2024 at 1:30 p.m., to address the parties’ then current incomes, and/or to address [Mother’s] employment status.
(emphasis in original). The circuit court then denied Mother’s motion for a status conference. Mother filed an intervening revisory motion that she later withdrew, the timing of which will be discussed infra. This appeal followed.
JURISDICTION AND TIMELINESS
Before we address the issues raised, we address whether this case is properly before us. Although neither party raised this concern, we are obligated to address the issue of our jurisdiction sua sponte. See In re Nicole B., 410 Md. 33, 62 (2009). This is because otherwise this Court will dismiss an appeal sua sponte if it determines appellate jurisdiction is lacking. See id. In March of 2024, after the circuit court denied Mother’s motion for a status conference, Mother filed a motion to alter or amend the court’s 2024 Order pursuant to Maryland Rule 2-534, and requested a hearing. In response, in April of 2024, Father filed an opposition to Mother’s motion and also requested a hearing. Mother later filed a motion to strike Father’s opposition, which Father opposed. In June of 2024, the circuit court scheduled a
Zoom motions hearing on the matter for September 4, 2024.
Prior to the date for the scheduled motions hearing, in August of 2024, Mother filed a notice of appeal, and subsequently withdrew her Rule 2-534 motion. Mother also requested in that filing that the circuit court cancel the September 2024 motions hearing.This Court then ordered in early September of 2024 that Mother’s appeal should proceed.In October of 2024, Mother filed another line with the circuit court, requesting that the court remove the October 7, 2024 child support review hearing from the docket because the hearing concerned the subject of this appeal. The circuit court then cancelled the October 2024 hearing and the matter proceeded before this Court.
We find that Mother’s appeal is timely and that we have jurisdiction. If properly filed within ten days after the entry of a judgment, a motion to alter or amend pursuant to Maryland Rule 2-534 stays the time for noting an appeal until the withdrawal or disposition of the Rule 2-534 motion. See Sieck v. Sieck, 66 Md. App. 37, 41–43 (1986); see also Edsall v. Anne Arundel Cnty., 332 Md. 502, 508 (1993) (“[A] notice of appeal filed prior to the withdrawal or disposition of a timely filed motion under Rule . . . 2-534, is effective.”); Judge Kevin F. Arthur, Finality of Judgments and other Appellate Trigger Issues 17 (3d ed. 2018) (hereinafter “Finality of Judgments”). The notice of appeal does not divest the circuit court of jurisdiction to entertain a timely filed post-judgment motion because the processing of the appeal is “delayed until the withdrawal or disposition of the motion.” Edsall, 332 Md. at 508. “[I]f a party files a timely post-judgment motion, but notes an appeal while the motion is still pending, the party need not file another notice of appeal after the withdrawal or disposition of the motion.” Finality of Judgments 17 (referencing Edsall, 332 Md. at 506, 508). This is because “the appeal relates forward to the time of withdrawal or denial of the post[-]judgment motion.” Id. (referencing Edsall, 332 Md. at 506, 508; and Folk v. State, 142 Md. App. 590, 599–602 (2002)).
Here, Mother filed a revisory motion pursuant to Rule 2-534 to alter or amend the court’s 2024 Order within ten days of the circuit court’s entry of the 2024 Order.10 Because Mother filed the Rule 2-534 motion within ten days of the 2024 Order, the Rule 2-534 motion tolled the thirty-day clock for Mother to file a notice of appeal, until either Mother withdrew, or the circuit court entered a disposition, regarding the Rule 2-534 motion. Mother filed her notice of appeal in August of 2024. At this time, the circuit court still had jurisdiction over the case because: (1) Mother’s notice of appeal did “not divest the circuit court of jurisdiction to entertain a properly filed post-judgment motion,” and (2) the processing of Mother’s appeal was delayed until either Mother withdrew the Rule 2-534 motion or until the circuit court entered a disposition. Edsall, 332 Md. at 508. The circuit court retained jurisdiction until Mother filed a line in August of 2024, withdrawing the Rule 2-534 motion, and requested a cancellation of the hearing that was set for September of 2024. See Edsall, 332 Md. at 506, 508. When Mother withdrew her Rule 2-534 motion, the circuit court was divested of its jurisdiction, and the processing of Mother’s notice of appeal became “active.” Mother’s appeal “related forward” to her withdrawal of the 2-534 motion. Thus, Mother’s appeal is timely, and this court has appellate jurisdiction.
DISCUSSION
I. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION
REGARDING
RETROACTIVE CHILD SUPPORT.
A. Party Contentions
Mother asserts that pursuant to Maryland Code (1984, 2019 Repl. Vol.), section 12-101 of the Family Law Article (“FL”), the circuit court erred in denying her “full” retroactive support. Mother contends that the circuit court abused its discretion because itonly ordered eight months of retroactive support from July 1, 2023. Mother suggests that she should have been awarded retroactive support from February of 2020.
Father asserts that the circuit court’s denial of “full” retroactive support was within the circuit court’s sound discretion. Father imparts that because retroactive child support is “a statutory creature,” and because the only case law provided by Mother concerned theestablishment or calculation of child support, Mother did not present a legal argument.
B. Standard of Review
“Although retroactive support is allowed, it is by no means mandatory.” Caccamise v. Caccamise, 130 Md. App. 505, 518, cert. denied, 359 Md. 29 (2000). The decision to award retroactive child support lies within the trial court’s discretion. See Petitto v. Petitto, 147 Md. App. 280, 310 (2002). A court abuses its discretion when its decision stands “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Sumpter v. Sumpter, 436 Md. 74, 85 (2013) (quoting North v. North, 102 Md. App. 1, 14 (1994)).
C. Analysis
Retroactive child support is governed by FL section 12101(a). See Chimes v. Michael, 131 Md. App. 271, 294–95 (2000). FL section 12-101 provides:
(a)(1) Unless the court finds from the evidence that the amount of the award will produce an inequitable result, for an initial pleading that requests child support pendente lite, the court shall award child support for a period from the filing of the pleading that requests child support.
(3) For any other pleading that requests child support, the court may award child support for a period from the filing of the pleading that requests child support.
FL § 12-101(a)(1) and (3) (emphasis added). In Chimes, this Court interpreted FL section 12-101(a)(1) and (3) and explicated upon the applicability of each subsection of the statute. Chimes, 131 Md. App. at 294–96. The Court provided that for a request for retroactive child support to fall under subsection (a)(1), an initial pleading that requested child support pendente lite must exist and that section 12-101(a)(3) “addresses all other pleadings.” Id.at 295. The Court in Chimes further noted that “[b]y its plain language, section 12-101(a)(3) leaves to the discretion of the court that which section 12-101(a)(1) makes mandatory.” Id. (referencing Tanis v. Crocker, 110 Md. App. 559, 570–71 (1996)). Further, the Court in Chimes stressed the
broad discretion that circuit courts have under subsection (a) (3). Id. at 295–96.
Here, the circuit court did not err, as there was not an initial pleading whichrequested child support pendente lite; the circuit properly found that subsection (a)(3) was the applicable portion of the statute. Then, the court exercised its broad discretion in calculating the retroactive child support amount. See Krikstan v. Krikstan, 90 Md. App. 462, 472–73 (1992); see also Dunlap v. Fiorenza, 128 Md. App. 357, 371–72 (1999). When the court exercised its discretion and chose a different date, July 1, 2023 as opposed to the date Mother requested, the court provided an in-depth explanation for the declination to award retroactive support to the February 2020 date requested by Mother. In the attachment to the 2024 Order, Endnote B., the circuit court first reviewed FL section 12-101, and identified 12-101(a)(3) as the applicable subsection of the statute. Next, the court reviewed the “fraught” history between the parties, explaining that the parties and their children experienced a “tumultuous and volatile history” until the 2015 Order. The court reviewed the facts and circumstances immediately leading up to the second motion for modification of custody, which began in February of 2020. Then, the court referenced and incorporated its 2023 Opinion, summarized the testimony from the 2023 trial, and considered the findings from the 2023 Opinion and Order. Finally, the court assessed “what leverage each party had to avoid three years of litigation and damage to the children.” The court found that Father could not have avoided litigation because he was cut out of both of J.’s and P.’s lives; that after minimal contact was reestablished with J. and P., he was treated as an “inconvenient pest” by Mother; that without abandoning J. and P., he was not in a position to walk away from the litigation; and that common sense dictated that Father would not want to walk away from the litigation and his children. Conversely, the court found that Mother could have made different choices and Mother brought “a scorched-earth approach” to her view of Father; that Mother was “judgmental, rigid[,] and seemed to place great importance on the fight and trying to paint [Father] as a ‘monster’”; that rather than guiding J. and P. “from a place of emotional and physical wisdom and maturity,” Mother instead decided to “stick it” to Father due to her longstanding frustrations with him; and that when opportunities arose for improvement, Mother took advantage of those opportunities to undermine Father as a father to J. and P. The court emphasized that Mother’s “acts and omissions did, in fact, do damage to [Father’s] parenting and his relationship with his kids[.]” It was for these reasons that the court declined to award retroactive child support from February 2020 through June 2023;to hold otherwise, the court determined, would “be inequitable and would create a windfall for a parent who inappropriately manipulated children into abandoning a court-ordered structure because it suited her.” Therefore, the court did not abuse its discretion in decliningto award retroactive child support from February 2020 through June 2023.
In support of Mother’s contention that the circuit court erred—in the 2024 Order by limiting the award of retroactive child support to eight months of support commencing on July 1, 2023—Mother makes several arguments, all of which are incorrect. We explain.First, Mother alleges that when the
circuit court awarded retroactive support, it erred because it deviated from the Guidelines.11 Mother contends that the court failed to follow FL section 12-202, which are the steps a circuit court is required to take when it deviates from the Guidelines. We disagree. The court’s calculation of Father’s child support obligation was $1,502 per month. This amount was the same amount that Mother wasawarded in retroactive child support. The circuit court followed the Guidelines for both of these calculations. It does not follow that the circuit court followed the Guidelines in the prospective support but not in the retroactive support award when the amounts are the same and are based on the same information. The court referenced trial exhibits, Guideline worksheets that Mother submitted, and testimony where Father reviewed his sources of income. Thus, we disagree that the circuit court deviated from the Guidelines, and we disagree that the court was required to follow FL section 12-202.
Next, Mother asserts that the circuit court incorrectly interpreted the payment of retroactive child support as a payment obligation to her, rather than to J. and P. Mother bases this argument on her frustration with the court’s characterization of her, and the court’s stated bases in the attachment to the 2024 Order—specifically the language that awarding Mother any other retroactive child support would “result in her gaining a ‘windfall.’” In support of this argument, Mother cites precedent which explains (1) that parents have a legal obligation to support their children; and (2) that a child support obligation, although paid to the other parent or guardian, is an obligation owed to the children. See Houser v. Houser, 262 Md. App. 473, 490–94, cert. granted 489 Md. 244(2024); Knott v. Knott, 146 Md. App. 232, 247–50 (2002).
We disagree with Mother’s analysis. Mother’s contention fails to recognize that the cases on this topic—which explain that child support is an obligation parents owe to their children—all have one common theme: at least one parent bargained away, or attempted to bargain away, a child support obligation, and then a reviewing court determined that the agreement or attempted agreement was invalid. See e.g., Guidash v. Tome, 211 Md. App. 725, 739–40 (2013) (separation agreement that created “an alternative child support arrangement, when in lieu of formal child support, [the father] agreed to pay all expenses associated with the marital home for ten years” was void as against public policy); Stambaugh v. Child Support Enf’t Admin., 323 Md. 106, 111 (1991) (where the motherattempted “to waive any liability of [the father] for past or future child support payments due by [the father] in consideration of his consent to the adoption of his children by [the mother’s new husband],” the court voided this agreement as against public policy); Houser, 262 Md. App. at 494–99 (parents’ joint agreement that father had no obligation to support the child was invalid). Based on the record before us, we cannot discern an instance where Father bargained away or attempted to bargain away his parental obligation to support his children. For this reason, Guidash, Stambaugh, Houser, and the litany of precedent on this topic are dissimilar. We disagree that the circuit court incorrectly interpreted the payment of retroactive child support as a payment obligation to her, rather than to J. and P.
Finally, Mother avers that the court erred in analyzing retroactive support under an “inequitable” standard. Mother’s argument, as we read it, is that the court incorrectly usedthe equity-based standard from FL section 12-101(a)(1), a standard which does not appear in the applicable portion of the statute, FL section 12-101(a)(3). We do not agree. As Father accurately suggested in his brief, “the mere fact the statute does not require the court . . . to find an inequitable result . . . does not preclude the trial court from considering an inequitable result, because the decision is entirely discretionary.” (emphasis in original). Further, equity is a standard that is interwoven throughout much family law jurisprudence, including child support; as such, equity is frequently a relevant consideration. See Houser, 262 Md. App. at 491–92 (discussing the equity in child support awards); see also Petrini v. Petrini, 336 Md. 453, 460–63 (1994) (same). Thus, we affirm the circuit court’s decision regarding retroactive child support.
II. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN ORDERING FATHER’S PAYMENT OF THE CHILD SUPPORT OBLIGATION THROUGH DIRECT PAY.
A. Party Contentions
Mother asserts that the circuit court erred in ordering Father to pay child support directly, rather than via an earnings withholding order (“EWO”). Mother bases this contention on her impression that EWOs are the default mechanism for paying child support rather than direct pay. Mother also contends that the circuit court erred when it found that there was “good cause” not to issue an immediate EWO pursuant to FL section 10-123(d) (1) because the court did not provide an explanation regarding its “good cause,” and only stated that it had “good cause.”Father asserts that the circuit court did not abuse its discretion in ordering direct payment of the child support obligation. Father contends that the trial court correctly determined that there was “good cause” not to issue an EWO based on the court’s 2023 Opinion and Order, which it relied on in issuing the 2024 Order.
B. Standard of Review
We review contentions that the circuit court erred as to a matter of law on a de novo basis, that is, without any deference to the decision of the circuit court. In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010). Factual findings made by the trial court are accepted unless they are clearly erroneous. C.M. v. J.M., 258 Md. App. 40, 58 (2023); Md. Rule 8-131(c). “A finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Lemley v. Lemley, 109 Md. App. 620, 628 (1996); see also Md. Rule 8-131(c).Accordingly, we will review whether the circuit court correctly applied the statutes governing EWOs under the de novo standard, and the circuit court’s factual findings regarding “good cause” under the clearly erroneous standard.
C. Analysis
EWOs are governed by Title 10, Subtitle 1, Part III of the Family Law Article. See generally FL § 10-120 et seq. Two sections are particularly relevant here: section 10-121 and section 10-123.
Pursuant to FL section 10-121(a), “[a]ny order under . . . Part III of this subtitle that is passed on or after July 1, 1985 shall constitute an immediate and continuing withholding order on all earnings of the obligor that are due on or after the date of the support order.” Section 10-123(d) provides exceptions for when a court may decline to authorize an immediate EWO. The two exceptions are when: “(1) any party demonstrates, and the court finds, that there is good cause to not require immediate earnings withholding; or (2) the court approves of the terms of a written agreement of the parties providing for an alternative method of payment.” FL § 10-123(d)(1)–(2). Regarding section 10-123(d)(1), good cause is a “substantial reason, one that affords a legal excuse.” G. Heileman Brewing Co., Inc. v. Stroh Brewery Co., 308 Md. 746, 759 (1987) (internal citations omitted); see also Cause, Black’s Law Dictionary (12th ed. 2024) (defining good cause as a “legally sufficient reason”). Finally, pursuant to section 10-121(c), if a court finds that one of the exceptions under 10-123(d) applies, then the court must include a statement regarding the requisite steps for acquiring an EWO should it become needed in the future.12
Here, we cannot discern any legal error in the court’s application of FL sections 10-121 and 10-123. Further, we do not conclude that the circuit court’s factual findings under these statutes were clearly erroneous. We address each of the statutes in turn. Pursuant to 10-121(a), the circuit court correctly determined that the child support ordered in 2024 could presumptively be paid via an EWO, although from our in-depth review of the record, we cannot find any instance in which Mother or Father requested an EWO as the method of payment for the child support obligation. Next, the circuit court properly determined that pursuant to FL section 10-123(d)(1) or (2), there was good cause to not issue an immediate EWO. After deciding that an exception pursuant to 10-123(d)(1) or (2) applied, and that Father would fulfill his child support obligation through direct pay, the circuit court provided the requisite warnings from 10-121(c), verbatim, in the 2024 Order. Thus, the 2024 Order squarely complies with the dictates of FL sections 10-123(d)(1) and 10-121(c).
In support of her contention that an exception from 10123(d) does not apply—and therefore Father’s payment should be subject to an EWO—Mother asserts that “the [2024]Order fails to state the corresponding finding required under 10-123(d) (1) that good cause was demonstrated.” The basis of Mother’s contention is that, although in the 2024 Order the circuit court found “good cause” to not issue an EWO, the circuit court never explained what the “good cause” was, nor did it provide further explanation on this point.
We disagree with Mother’s analysis. “[A] trial judge’s failure to state each and every consideration or factor in a particular applicable standard does not, absent more, constitute an [error], so long as the record supports a reasonable conclusion that appropriate factors were taken into account in the exercise of discretion.” Cobrand v. Adventist Healthcare, Inc., 149 Md. App. 431, 445 (2003). This is because “we presume judges to know the law and apply it, even in the absence of a verbal indication of having considered it.” Wagner v. Wagner, 109 Md. App. 1, 50 (1996).
We find Long v. Long, 141 Md. App. 341 (2001) to be
comparable. In Long, the appellant challenged the circuit court’s finding that he had voluntarily impoverished himself, because the circuit court did not explicitly discuss the ten factors that a court should consider when deciding whether a person is voluntary impoverished. Long, 141 Md. App. at 350–51. This Court held that, based on a review of the financial evidence beforeit, the “mere lack of an explicit discussion” of certain findings on the record did “not necessarily mean that the trial court erred.” Id. at 351. Here too, the mere lack of an explicit discussion of “good cause,” does not mean that the trial court erred. Based on the circuit court’s thirty-eight-page 2023 Opinion, eighteen-page 2023 Order, the 2024 Order, and the attachment to the 2024 Order which included endnotes, all of which were rife with explanations for its findings, it is clear that the court found “good cause” without explicating every detail of said “good cause.” Additionally, the court did not make any findings or note any concerns regarding Father in ordering direct payment of child support. Thus, we affirm the circuit court’s decision to order Father to pay child support via direct pay rather than via an EWO.
III. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION WHEN IT ORDERED A CHILD SUPPORT REVIEW HEARING IS MOOT.
A. Party Contentions
Mother contends that the circuit court erred in directing Mother and Father to appear at a child support review hearing on October 7, 2024. Mother asserts that the circuit court’s sua sponte decision to hold this hearing, without any other facts or reasons stated, was an abuse of discretion because it provides for in futuro modification of child support, that is modification of child support based on events that have not yet occurred. Moreover, Mother contends that because no party filed a fresh motion for modification, as is required by FL section 12-104, that the circuit court’s decision to hold a hearing was in error.
Father asserts that it was well within the circuit court’s discretion to order a child support review hearing. Father contends that based on the way in which the circuit court drafted the 2024 Order, the effect of scheduling such a hearing reduced the 2024 Order to a pendente lite order. Father asserts that Mother is incorrect that the 2024 Order provides for in futuro modification or support.
B. Analysis
We must first address a threshold concern of whether this issue is moot. Although neither party raised this concern, we are obligated to address sua sponte the issue of mootness, because appellate courts cannot decide moot questions. La Valle v. La Valle, 432 Md. 343, 351 (2013).
“A case is moot when there is no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy [that] the Court could grant.” Suter v. Stuckey, 402 Md. 211, 219 (2007); see also La Valle, 432 Md. at 351 (“A case is considered moot when past facts and occurrences would have produced a situation in
which, without any future action, any judgment or decree the court might enter would be without effect.”) (internal quotation marks and citations omitted). “[A]ppellate courts do not sit to give opinions on abstract propositions or moot questions, and appeals which present nothing else for decision are dismissed as matter of course.” La Valle, 432 Md. at 352 (quoting State v. Ficker, 266 Md. 500, 506–07 (1972)). Otherwise, the Court would be issuing an advisory opinion, which is impermissible. See Dep’t of Hum. Res., Child Care Admin. v. Roth, 398 Md. 137, 143 (2007).
Here, Mother filed a line with the circuit court, requesting that it cancel the October 7, 2024 Zoom hearing, once her appeal became active. See supra, Jurisdiction and Timeliness. The circuit court subsequently cancelled the hearing. Because the hearing wasnever held—and from our review of the record, has not been rescheduled—there is no longer an existing controversy before us for which we could grant an effective remedy. Thus, this issue is moot.
Although this issue is moot, we nonetheless provide some guidance for the circuitcourt, because circuit courts “retain[] continuing jurisdiction” over custody and child support orders. Kadish v. Kadish, 254 Md. App. 467, 503 (2022). Consequently, “such an award . . . never achieves quite the degree of the finality that accompanies other kinds of judgments.” Id. at 503 (quoting Frase v. Barnhart, 379 Md. 100, 112 (2003)). Despite this continuing jurisdiction, a court cannot indefinitely continue to schedule child support review hearings. See Frase, 379 Md. at 121. In Frase v. Barnhart, the Supreme Court of Maryland aptly stated:
The court’s role is different in a normal private custody dispute. It is to take evidence and decide the dispute, so that the child and the other parties can get on with their lives. The court does not retain jurisdiction until the child turns 21, or even 18. Although the matter of custody, visitation, and supportmay always be reopened upon a showing of changed circumstances, the court’s jurisdiction over the particular dispute ends when the dispute is resolved, which the law anticipates will occur within a reasonable time after the evidentiary hearing. Those kinds of cases are not to be strung out indefinitely, as though they were CINA cases.
For good cause, the court may hold a case open for a reasonable period to consider additional evidence, not available at trial but which the court finds necessary to a proper decision. What it may not do, however, is to proceed to make findings that would dictate a particular result and then subject the favored party to conditions inconsistent with that result and to continuing review hearings. When it does that, the case never ends; the child and the parties remain under a cloud of uncertainty, unable to make permanent plans. The court seemingly reserves the power to alter the custody [or support]arrangement at any time, even in the absence of a new or amended petition, based on a later review of circumstances known or predicted to exist at the time of the initial determination. That is procedurally impermissible.Id. (emphasis added). Thus, we note that just as in Frase, for the court to continually schedule child support review hearings, would be procedurally impermissible.
In further support of this analysis, we emphasize the established principle in Maryland, that a court “may modify
a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.” FL § 12-104(a) (emphasis added); see also Hardisty v. Salerno, 255 Md. 436, 439 (1969) (holding that while orders related to custody and child support are never final in Maryland, any reconsideration of such an order should demonstrate “changes in circumstances which have occurred
FOOTNOTES
subsequent to the last court hearing.”). After the circuit court issued the 2023 Order, but prior to the court’s issuance of the 2024 Order, neither party filed another motion for modification. Had this issue not been moot and a review held, the court may have erred. However, because this issue is moot, we need not venture further into this discussion.
THE FEBRUARY 21, 2024 ORDER OF THE CIRCUIT COURT FOR WASHINGTON COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT
1 There were other children born to the marriage, but those children reached majority prior to this dispute.
2 In her brief, Mother phrased the issues as follows:
1. Did the trial court err and abuse its discretion when it denied [Mother’s] request for an award of retroactive child support?
2. Did the trial court err and abuse its discretion in ordering [Father] to pay [Mother] child support via direct pay instead [of] via an earnings withholding [order] under Title 10, Section 10-121 of the Family Law Article of the Annotated Code of Maryland?
3. Did the trial court err and abuse its discretion when it ordered, sua sponte, that a “child support review hearing” be held on October 7, 2024?
3 To preserve the anonymity of the minor children, we refer to them by the randomly selected letters “J.” born in 2004, and “P.” born in 2007. We note that prior to the filing of the instant appeal, J. reached majority.
4 Father filed a motion to strike Mother’s March 9, 2021 motion for modification of custody, noting that the matter was scheduled for a three-day trial in 2021, and that Mother’s motion was “in effect a counterclaim” because Father had already requested amodification by filing a complaint. Mother opposed Father’s motion. The circuit court denied Father’s motion to strike. This is notable, as thesdates are pertinent to the discussion surrounding retroactive child support.
5 The first four days of trial occurred in March, followed by an additional day in April, and a final day in May.
6 Section 504 of the Rehabilitation Act of 1973 is a federal law that guarantees the rights of people with disabilities who are enrolled in federally funded programs, including public schools. 29 U.S.C. § 794. In Maryland, 504 plans ensure that students with disabilities who are enrolled in applicable schools receive reasonable accommodations to promote their educational needs and their academic success. Section 504 Plans, Maryland Dept. of Disabilities, https://perma.cc/VJG7-2MQT (last visited Mar. 11, 2025).
7 By this time, J. had reached majority. Thus, the child access determination only pertained to P.8 In the 2024
Order, the court stated that retroactive support was ordered from “July 1, 2023, through March 1, 2024, the child support arrearage due is $12,016.00 [8 months x $1,502 = $12,016].”
On its face, this part of the 2024 Order seems to be in error becausethe circuit court docketed the 2024 Order on February 21, 2024, and a court cannot prospectively order retroactive support. See Stevens v. Tokuda, 216 Md. App. 155, 177–78(2014). However, upon a further review, one can discern that the circuit court did not err, but rather made an inadvertent typographical mistake regaring the March 1, 2024 date, because the math is correct, and shows that the court intended to order retroactive support for a period of eight months (i.e., July 2023 through February 2024).
9 After Mother and Father divorced, Mother remarried. References to “the twins” concern the children born to Mother’s second marriage.
10 The circuit court entered the 2024 Order on February 21, and Mother filed her Rule 2-534 motion on March 4, 2024. March 4 was a Monday, and the first business day available to Mother, since the tenth day fell on Saturday, March 2, 2024. See Md. Rule 1-203(a)(1).
11 Mother contended at oral argument that by not making a retroactive award for the “full” three years, the court deviated from the Guidelines. Mother did not offer, nor could we find any, case law supporting this interpretation of the Guidelines.
12 Those requisite warnings are:
(1) if the obligor accumulates support payments arrears amounting to more than 30 days of support, the obligor shall be subject to earnings withholding;
(2) so long as the support order is in effect, the obligor is required to notify the court of:
(i) any change of address within 10 days after moving to a new address; or
(ii) any change of employment within 10 days after receiving the first earnings from a new employer; and
(3) failure to comply with item (2) of this subsection will subject the obligor to a penalty not to exceed $250 and may result in the obligor’s not receiving notice of proceedings for earnings withholding.FL § 10-121(c).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 05 MFLU Supp. 19 (2025)
Child support; evidence Juno Simmons v. Joi Simmons
The Appellate Court affirmed the Baltimore County Circuit Court’s child support award. While the circuit court did not explain how it arrived at its $4,000 per month child support award, it is evident that, to some extent, it split the difference between what each party contended at trial would be an appropriate award.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
a managerial position for Google LLC. His position was initially based in Texas and more recently in Atlanta. Wife worked as a dialysis technician for part of the time they lived in Texas. She then worked as a chef for Google at the time they were married until the birth of their youngest child. After Husband and Wife separated, Wife was rehired by Google for a job based in Atlanta, but she is able to work remotely from Baltimore County.
Both Husband and Wife participated in the Google LLC 401(k) Savings Plan (“Google 401(k) plan”), a retirement investment plan sponsored by the company. According to exhibits introduced at trial, it appears that the Google 401(k) plan is administered by Vanguard, a well-known financial services and mutual fund company. Husband’s and Wife’s separate Google 401(k) plan accounts were derived from their own contributions and from an employer match. Husband’s account consists entirely of shares of a specific Vanguard targetdate mutual fund; Wife’s account consists entirely of shares of another such fund with a different target date.1
This appeal concerns two financial matters that were contested in a divorce case in the Circuit Court for Baltimore County. First, Appellant Juno Simmons (“Husband”) challenges the Circuit Court’s determination of the extent to which certain financial assets titled in his name were marital property and its order for him to transfer half of those assets to Appellee Joi Simmons (“Wife”). Second, he asserts that the court abused its discretion in the amount of child support it awarded against him and in favor of Wife.
For the reasons set forth below, we remand this case to the Circuit Court to revise its order to limit the transfer of property to that which the court found to be marital property. We hold that the court did not abuse its discretion in determining the amount of child support.
I Background
A. Marriage, Children, and Work
Husband and Wife lived together for a number of years, primarily in Texas, beginning in at least early 2012. They eventually were married in Baltimore, Wife’s home town, on May 27, 2017. Three children were born as a result of their relationship – one each in 2012, 2019, and 2020. The parents separated in May 2020 when Wife moved from Texas to Maryland with the children to be closer to her extended family. In November 2020, Husband moved from Texas to Atlanta, Georgia, in connection with his employment.
Before, during, and after the marriage, Husband worked in
Both Husband and Wife also received shares of restricted stock in Google’s parent company, known as Alphabet, Inc., in connection with their employment with Google. As a form of deferred compensation and an incentive to remain with the company, at least some of those shares do not vest until the employee has served a specified tenure with the company. Those shares are held in accounts, in the employee’s name, at Morgan Stanley, a well-known investment bank and brokerage firm.
B. Divorce Litigation
In May 2021, one year after the separation, Wife filed a complaint for absolute divorce in the Circuit Court. Husband filed an answer to the complaint in July 2021 and a countercomplaint for divorce in November 2021.
The Circuit Court conducted a trial on December 5-6, 2022. Testimony at the trial focused largely on issues relating to custody of and access to the children, and only briefly on the monetary issues on which this appeal is based. In a Decision and Judgment dated January 10, 2023 – and entered by the Clerk on February 13, 2023 – the Circuit Court granted a judgment of absolute divorce based on the ground that the parties had lived separately for one year. In that divorce decree, the Circuit Court also delineated its resolution of various issues related to the couple’s children and property.
Child Custody. The court gave the parties joint legal custody of their children, with Wife having tie-breaking authority as to certain decisions. The court granted Wife “primary physical custody” of the children and set forth in detail the times and
circumstances under which Husband would have access to, or custody of, the children. The child custody element of the Circuit Court order is not at issue in this appeal. However, as we shall see, Husband contends that the specifications in the court’s order effectively provided for “shared physical custody” by the former spouses for purposes of the law relating to child support.2 Child Support. The court ordered Husband to pay Wife child support in the amount of $4,000 per month and child support arrears totaling $46,236 at a rate of $770.60 per month until the arrearage is paid in full. Husband was ordered to maintain his employment-related medical, dental, and vision insurance for the children and to pay the children’s travelrelated expenses in connection with visitation.
Equitable Distribution of Marital Property. The court identified certain property titled in the name of either Husband or Wife alone that was properly characterized as marital property. The court reviewed the various statutory considerations for determining an equitable distribution of the marital property. See FL §8-205(b). It concluded that a number of those factors favored the transfer of property and a monetary award to Wife. Among those factors were the following: the contributions of each party to the well-being of the family, the value of all property interests of each party, the economic circumstances of Husband and Wife, the duration of the marriage, and the non-monetary contributions of Wife that contributed to the accumulation of marital property.
The court determined that Husband and Wife were each entitled to 50% of the marital property. Husband does not dispute the court’s even split of marital property, but rather disagrees with some of its determinations as to whether certain property was marital or non-marital.
Monetary Award. As part of the division of marital property, the court ordered Husband to pay a monetary award of $81,114.49 to Wife. That figure corresponded to one-half of the equity in the Georgia home occupied by and titled in the name of Husband. The court reasoned that the Georgia home had been purchased during the parties’ marriage and, contrary to Husband’s contentions, that there was insufficient evidence that the funds used to purchase it were traceable to non-marital property of Husband. This monetary award is not at issue in this appeal.
Division and Transfer of Certain Financial Assets. The court listed the current valuations of each party’s interests in the Google 401(k) plan and the extent to which that interest was marital or non-marital property. The court’s valuations were apparently3 derived from Vanguard account statements, introduced as exhibits at trial, that related to differing time periods and that reflected the total value of the mutual fund shares in each party’s account on the particular dates.
The court took the same approach to determining the value of each party’s holdings of Alphabet stock that each received in connection with their respective employment with Google. Again, the court’s valuations were apparently derived from Morgan Stanley account statements that the parties introduced as exhibits at trial. Those account statements set forth the number of Alphabet shares each owned and the value of those shares during particular periods of time. 4
Google 401(k) plan. With respect to the Google 401(k) plan,
the court found that Husband’s total interest in that plan was valued at $235,851.19. That figure was apparently derived from a 2022 quarterly statement of the plan and represented the value of Husband’s shares in the plan as of September 30, 2022. The court determined that shares valued at $65,096.34 were nonmarital property. That figure was apparently derived from a 2017 monthly statement of Husband’s shares in the plan as of June 1, 2017 – shortly after he married Wife. The court determined that the marital portion of Husband’s interest in the Google 401(k) plan was $170,754.85. That figure was apparently derived by subtracting the June 2017 value of Husband’s shares from the September 2022 value of Husband’s shares. The exhibits on which the court apparently relied do not indicate the precise number of shares that Husband owned in 2017 and 2022, nor do they indicate the share prices at those times.5
As to Wife, the court found that her interest in the Google 401(k) plan was valued at $14,778.70 and that all of it was marital property. This figure was apparently based upon a quarterly statement for Wife’s account and represented its value on September 30, 2022.
Alphabet restricted stock. As to their Alphabet stock holdings, the court found that Alphabet stock valued at $251,172.65 was titled in Husband’s name as of the time of trial. That figure was apparently derived from a Morgan Stanley quarterly report for Husband’s account that closed on September 30, 2022. Of that amount, the court found that stock worth $16,357.14 was nonmarital property. That number was apparently derived from a Morgan Stanley quarterly statement that closed on June 30, 2017 – approximately one month after Husband and Wife married.6 The court apparently subtracted the value obtained from the 2017 statement from the value stated on the 2022 statement and concluded that the result – $234,815.51 – was the value of Husband’s Alphabet stock that was marital property.
With respect to the Alphabet stock titled in Wife’s name, the court found that it was valued at $5,144.69 and that all of that stock was marital property. This finding was apparently based on a Morgan Stanley quarterly statement as to Wife’s account and represented the value of her stock holdings on March 31, 2022.
Order to Transfer 50% of Each Account. After listing its conclusions as to the marital and non-marital portions of the financial assets outlined above, the court ordered Husband and Wife to each transfer 50% of their respective interests in the Google 401(k) plan to the other. Similarly, they were each ordered to transfer 50% of their respective holdings of Alphabet, Inc. stock to the other.7
Miscellaneous Issues. The court’s order also included various other provisions concerning personal property, payment of legal fees, and other matters not at issue in this appeal. The order provided that certain extraordinary expenses incurred for the children were to be split by the parties, with Husband paying 65% of those expenses and Wife responsible for the remaining 35%. No alimony was assessed as both parties had waived alimony.
Shortly after the judgment was issued, Husband obtained new counsel, who filed a motion to alter or amend the judgment.8 The Circuit Court denied that motion on March 16, 2023. Husband then filed a timely notice of appeal.
DISCUSSION
In this appeal, Husband argues that the Circuit Court erred in three respects when it ordered him to transfer financial assets to Wife and awarded her child support. In particular, he raises the following issues:
1 – Whether the Circuit Court erred in its determination of the portion of Husband’s Google 401(k) plan account and Alphabet stock that was marital property.
2 – Whether the Circuit Court abused its discretion when it ordered Husband to transfer half of his Google 401(k) plan account and half of his Alphabet stock to Wife.
3 – Whether the Circuit Court abused its discretion when it determined Husband’s child support obligation.
A. Standard of Review
An appellate court accepts a circuit court’s fact findings underlying that court’s division of marital property in a divorce case and the determination of a parent’s child support obligation unless those findings are clearly erroneous. If the fact findings are accepted, the appellate court will overturn orders concerning marital property or child support only if the circuit court abused its discretion. Wasyluszko v. Wasyluszko, 250 Md. App. 263, 269 (2021) (marital property); Kaplan v. Kaplan, 248 Md. App. 358, 385 (2020) (child support). If the circuit court decision turns on a question of law, an appellate court undertakes a de novo review of that legal issue. Walter v. Gunter, 367 Md. 386, 391-92 (2002).
B. The Determination of Marital Property in Husband’s Financial Accounts
1. Statutory Three-Step Process
To determine the division of marital property and the amount of any monetary award in a divorce case, a court proceeds in three steps:
First, the court identifies “marital property” – defined generally as “property, however titled, acquired by 1 or both parties during the marriage.” Maryland Code, Family Law Article (“FL”), §§8-201(e), 8-203. Pertinent to this case, marital property does not include property that was acquired by one of the parties before the marriage, or that is “directly traceable” to such property. FL §8-201(e)(3)(i), (iv).
Second, the court determines “the value of all marital property” that it has identified. FL §8-204. In particular, the court determines the current value of that property at the time of the divorce. For example, in segregating the marital portion of a financial asset account from the non-marital portion of that account, the court looks to the current value of the assets in the account. See, e.g., Wasyluszko, 250 Md. App. at 274.
Third, in order to achieve an equitable distribution of the marital property, the court may take certain actions “as an adjustment of the equities and rights of the parties concerning marital property.” FL §8-205(a)(1). Pertinent to this case, the court may transfer ownership of an interest in property, including an ownership interest in a “pension, retirement, profit sharing, or deferred compensation plan, from one party to either
or both parties[.]” FL §8-205(a)(2). The court may also grant a monetary award to be paid by one party to the other. FL §8205(a)(1). The court is to make such decisions after considering various factors set forth in the statute and “any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property[.]” FL §8-205(b).
To aid the court in determining and valuing marital property, Maryland Rule 9-207 directs parties in a divorce case to file a joint statement of all property owned by them and to do so at least 10 days before the scheduled trial date. The joint statement is to identify three categories of property: (1) property that both parties agree is marital; (2) property that they agree is nonmarital; and (3) property about which they disagree whether the property is marital or non-marital. Maryland Rule 9-207(b). As to property in each of those three categories, the joint statement is to indicate how each item of property is titled, its fair market value in the opinion of each spouse, and any liens, encumbrances or debts associated with that property. Id. The rule is obviously intended to narrow and focus the issues concerning marital property that a court must decide.
2. The Order to Transfer One-Half of Each Party’s Retirement Accounts9
In this case, as part of its determination of the equitable distribution of marital property, the Circuit Court considered the interests of both Husband and Wife in the Google 401(k) plan and in their respective Morgan Stanley accounts holding restricted Alphabet stock. The court found that both accounts titled in Wife’s name were marital property. It found that part of both accounts titled in Husband’s name preceded the marriage and was non-marital property, but that most of the funds in those two accounts was marital property. The court also directed each party to transfer 50% of their respective retirement accounts to the other.10 The court directed the parties to draft qualified domestic relations orders (“QDROs”) “if necessary to avoid tax or other financial consequences resulting from the transfer of assets.”
The court was no doubt hindered in its effort to sort out marital property issues by the parties’ failure to submit the joint statement required by Maryland Rule 9-207 before the December 2022 trial. To be more precise, Wife’s counsel and one of Husband’s prior counsel had filed a joint statement signed by both counsel pursuant to that rule in August 2022. However, Husband later disclaimed the accuracy of that joint statement in his testimony at trial. His trial counsel submitted an alternate “joint statement” signed only by Husband and Husband’s trial counsel.11 As the Circuit Court observed during the trial: “[D] espite the rules requiring a joint statement, it doesn’t look like we ever got a truly joint statement … so we’re left piecing together things from various statements.”
3. Husband’s Contentions on Appeal
Husband makes several arguments to support his contention that the Circuit Court erroneously undervalued the non-marital portions of his interest in the Google 401(k) plan and his Alphabet stock holdings.
“Passive Growth” of Husband’s 401(k) Plan Account.
Husband argues that the Circuit Court was clearly erroneous when it used the cash value of the Husband’s account at the time of the marriage and “failed to account for the passive growth” of the non-marital share of that account. He does not elaborate in any significant detail on this argument – or the consequences if the Circuit Court had taken account of that “passive growth.”
Delayed Vesting of Restricted Stock. Husband argues that the Circuit Court did not take into account that some of the Alphabet restricted stock that he owned constituted “compensation for work performed partially during the marriage and partially prior to the marriage.” He asserts that he received some of the stock prior to the marriage12 and that, even though it did not vest until after the parties were married, those shares should not be treated as marital property in their entirety. He provides his own detailed analysis of the “marital/non-marital breakdown” of his Alphabet stock based on alleged grant dates and vesting dates.
Alphabet Stock Split. Husband notes that one of the Morgan Stanley account statements among the exhibits that were admitted at trial appears to indicate that there was a 20 to 1 stock split – presumably 20 new shares exchanged for each old share – on July 15, 2022.13 He argues that the Circuit Court erred in failing to take account of the stock split in its analysis of the non-marital portion of Husband’s restricted Alphabet stock. Husband also suggests that the stock split might affect that determination of non-marital property if the court were to consider the stock split in conjunction with his argument concerning the treatment of restricted stock he received prior to the marriage, but which vested during the marriage.
Request for Remand and Reconsideration. As to each of those points, Husband asks us to remand the case to the Circuit Court to revisit its determinations and valuations of marital and non-marital property while applying various approaches that Husband now outlines.
4. Whether the Court Erred in Calculating the NonMarital Portion of Husband’s Accounts
Method of Identifying and Valuing Marital and NonMarital Portions of Accounts
There are several issues with the methodology used by the Circuit Court in identifying and valuing the marital and nonmarital portions of Husband’s accounts. This methodology was not invented by the court, but rather was the methodology advocated by both Husband and Wife in their arguments to the court.
Shares,
not Dollars
While the Circuit Court recited dollar valuations for the parties’ respective Google 401(k) plan and Alphabet stock accounts on particular dates, what the parties actually owned were shares of a Vanguard target-date mutual fund through the Google 401(k) plan and shares of restricted Alphabet stock. In both cases, the dollar value of those shares would fluctuate over time with the rise or decline of the market price of a mutual fund share and a share of that stock.
The Circuit Court’s analysis of the marital/non-marital proportions of Husband’s Google 401(k) plan account and Alphabet stock account treats both accounts as though they consist of dollars, like a bank account, rather than shares of securities. The proper analysis would identify the non-marital
shares in those accounts, trace them to the date of the divorce, and calculate the value of those shares as of the date of divorce. See, e.g., Wasyluszko, 250 Md. at 271-74. The analysis applied by the court in this case would make sense only in the extremely unlikely event that the share prices remained constant over time.14 Depending on whether share prices rose or fell during the relevant time period, the Circuit Court’s methodology could have undervalued – or overvalued – the non-marital portion of Husband’s two accounts.15 “Passive Growth” of Husband’s 401(k) Plan
As best we can tell, Husband’s argument is an oblique attack on the methodology used by the Circuit Court to value the marital and non-marital portions of Husband’s Google 401(k) plan account. For the reasons explained above, an analysis that focused on the actual property in the account – mutual fund shares – would have been preferable to one that used non-comparable snapshots of the cash value of those shares at different times and different prices. However, at trial, both Husband and Wife endorsed the methodology used by the court.16 Neither party proposed any different methodology at trial. We cannot fault the Circuit Court for not having an insight that Husband has only in hindsight. And, even if we were willing to undertake such an analysis on appeal, the parties never included the necessary information in the trial record to determine whether the methodology that the Court used was to Husband’s benefit or detriment. Husband’s belated appellate embrace of a “passive growth” theory in the abstract does not support a conclusion that the Circuit Court was clearly erroneous or abused its discretion in its determination of marital property.
Vesting of Restricted Stock
Whatever merit Husband’s proposed analysis based on the vesting of his restricted alphabet stock may have in the abstract, there are two problems with his argument in the context of this case. One is the lack of a factual basis in the evidence admitted at trial; the second is the failure to preserve this issue in the trial court.
As to the first, in his brief Husband bases his analysis on a Morgan Stanley account statement that appears to list the award and vesting of Husband’s restricted stock for the period from January 2019 to May 2022. However, while that statement was marked for identification by Wife’s counsel, neither party moved its admission into evidence at trial and neither relied on it in their presentations to the Circuit Court. Moreover, there was no testimony at trial explaining or analyzing the various entries on the document.17 It would have required more than a dollop of speculation on the Circuit Court’s part to reach the conclusions Husband now urges.
As to the second problem – lack of preservation – Husband’s counsel conceded at oral argument in this Court that neither the analysis he advances on appeal, nor anything resembling it, was presented to the Circuit Court at the trial.
Hindsight as to what Husband’s counsel should have argued at trial is not a basis for concluding now that the Circuit Court was clearly erroneous in its factual findings as to the restricted Alphabet stock or abused its discretion in the decision it made based on those findings.
Stock Split
As with Husband’s vesting argument, Husband did not preserve his appellate contention concerning the significance of the stock split at trial. Even had he preserved the issue, there is no factual basis in the trial record for concluding that the court should have found a greater proportion of the stock to be non-marital property as a result of the stock split. No testimony was adduced at trial concerning the stock split or how it may have affected the marital and non-marital portions of Husband’s restricted stock account. The date of the stock split that Husband now identifies in the Morgan Stanley account statement was during the course of the marriage. Accordingly, the stock split would presumably have applied to both the marital and the non-marital portions of Husband’s restricted Alphabet stock account. It is not self-evident that it would affect the proportion of his shares that fell into each category. Husband thus has not shown that he preserved this issue or, in any event, that the court’s determination of marital property was affected by it.
5. Summary
While there is potential merit in some of Husband’s appellate arguments as to a better method for distinguishing marital from non-marital property and valuing that property, that does not mean that the Circuit Court was clearly erroneous in its findings of fact based on the record presented to it or that it abused its discretion in the legal conclusions it drew from those findings. The arguments that Husband presses now were not presented to the Circuit Court at trial. Nor did the Circuit Court exclude any evidence proffered by Husband at trial on any of the arguments that he now embraces. A new mini-trial on those issues would be necessary for Husband to make the record necessary in the first instance to support the points Husband now makes on appeal. The fact that Husband is asking for a remand on these points belies the fact that he seeks a do-over of these financial aspects of the trial based on hindsight as to what might have been better arguments in the first instance.
In any event, on the existing record of this case, it is not at all clear that Husband’s new arguments would result in an increase in the non-marital portion of Husband’s accounts. It was Husband’s burden to demonstrate at trial that the growth of the value of his accounts could be traced to non-marital property. Golden v. Golden, 116 Md. App. 190, 205 (1997). He failed to carry that burden.
There is no basis to conclude that the Circuit Court was clearly erroneous or abused its discretion with respect to an issue never presented to it.
C. The Order to Transfer Half of Husband’s Financial Asset Accounts
Husband argues that the Circuit Court abused its discretion when, after determining that a portion of Husband’s Google 401(k) plan and Alphabet stock holdings were non-marital property, it nonetheless ordered him to transfer one-half of each of those accounts to Wife, without distinguishing between marital and non-marital property in the order. Wife concedes that the Circuit Court’s order is inconsistent with its determination of marital and non-marital property. She contends that the
Circuit Court intended to order Husband to transfer only the “marital portion” of those accounts to Wife, but admits that the court “unfortunately” omitted the phrase “marital portion” from its order.
We suspect that Wife is correct, as the Circuit Court’s opinion does not contain any explanation for requiring Husband to transfer half of the non-marital portions of Husband’s accounts to Wife. Of course, it would have been preferable for Wife to make this concession in the Circuit Court when Husband raised the issue in his post-judgment motion to alter or amend. Instead, Wife filed a blanket opposition to Husband’s motion and the Circuit Court simply denied the motion.
We shall remand for the Circuit Court to clarify its order.
D. Husband’s Child Support Obligation
1. Starting Point and Guidelines
In a divorce case, the court is to award child support for the period beginning from the time when a party first files a pleading seeking that relief. FL §12-101(a). The court must ordinarily follow the mandatory child support guidelines set forth in statute. FL §12-202(a). There is a “rebuttable presumption” that the figure generated by application of the guidelines is the “correct amount of child support.” FL §12-202(a)(2)(i).
18 However, if the “combined adjusted actual income” of the parties exceeds an amount specified by statute, a circuit court “may use its discretion” to set the amount of child support. FL §12-204(d). When Wife filed her complaint in this case and requested child support, the statutory maximum for application of the guidelines was $15,000 per month, or $180,000 per year. FL §12-204(e) (2020).19
2. The Parties’ Positions and Submissions in the Circuit Court
Wife requested an award of child support as part of her complaint for divorce filed in May 2021. There appeared to be no dispute that the combined adjusted actual income of Husband and Wife exceeded $15,000 per month, although there was some disagreement about the precise amount of Husband’s income. In any event, there is no dispute that this is an “above the guidelines” case as to child support. Accordingly, it is also undisputed that the Circuit Court had discretion in its determination of the appropriate amount of child support to be awarded Wife. Reichert v. Hornbeck, 210 Md. App. 282, 315-16 (2013).
The court was tasked with determining not only the amount of child support to be paid in the future, but also the amount due for the past period beginning with the filing of Wife’s complaint to the post-trial judgment of divorce. It was undisputed at trial that Husband had made various payments to Wife in the nature of child support after their separation and prior to the divorce and should receive a credit for those payments, although there was some dispute as to the total amount of those payments.
Prior to trial, in August 2022, Wife submitted a proposed computation of a child support award, apparently based on the assumptions that Wife was awarded sole custody, that the parties’ combined actual monthly income totaled $30,750 (Husband’s share = $19,750 (64%); Wife’s share = $11,000 (36%)), and that monthly expenses related to the children amounted to
slightly more than $8,400.20 Wife’s computation at that time yielded a child support award against Husband of $5,412.77.
In her presentation at trial, Wife’s counsel revised her analysis to argue that Husband should pay $7,294 monthly in child support – apparently based on her calculation that Husband actually had a monthly income of $27,000 during a certain period. By contrast, Husband’s counsel asserted that application of a guidelines formula based on software on his computer yielded a child support award of $2,731 per month, although he did not provide any specific calculations.
At the conclusion of the trial, the court directed the parties to submit draft orders by the end of December 2022 reflecting what each side believed an appropriate judgment should contain. Unfortunately, those submissions do not appear in the Circuit Court record. We do not know if the parties revised their positions as to an appropriate award of child support or how the court’s ultimate order related to those proposals.
3. The Court’s Award
The court ordered Husband to pay child support to Wife in the amount of $4,000 per month beginning in January 2023. With respect to the 20 months from May 2021 (when Wife first requested child support) to December 2022 (just prior to the court’s judgment of absolute divorce), the child support arrears amounted to $80,000. The Circuit Court noted that the parties disputed how much credit Husband should receive against those arrears for payments he voluntarily made after Wife had left the marital home with the children. Based on the evidence submitted at trial, the court accepted Husband’s calculation of the cash payments and transfers he had made to Wife and found that he was entitled to a credit in the amount of $33,764; the court declined to provide a credit for a number of credit card charges for certain expenses as it was unclear that those expenses were actually for support of the children. After providing for that credit, the court calculated the remaining arrears to be $46,236 and ordered Husband to pay the arrears at the rate of $770.60 per month until it was paid in full.
Other than observing that it had discretion in an “above the guidelines” case and making a finding concerning the dispute over the amount of the credit that Husband should receive for past payments against child support arrears, the court did not elaborate on its reasoning in arriving at the monthly child support obligation of $4,000.21 The court’s task was undoubtedly made difficult by the somewhat murky record concerning Husband’s actual monthly income. Husband’s tax records and Google pay award document contradicted his sworn financial statement concerning his monthly income and perhaps cast doubt on other figures in that financial statement.
The court required Husband to maintain his employmentrelated health insurance covering the children and to pay the children’s travel-related expenses in connection with visitation. The order provided that certain extraordinary expenses incurred for the children were to be split by the parties, with Husband paying 65% of those expenses and Wife responsible for the remaining 35%.
4. Husband’s Contentions on Appeal
On appeal, Husband posits that the Circuit Court must have improperly considered – or failed to consider – certain factors in arriving at the amount of the child support obligation.
His primary argument is that the Circuit Court did not make specific findings as to the income of Husband and Wife or of the expenses related to the three children. He also asserts that the court should have discounted the amount of child support it awarded because the court effectively gave him shared physical custody of the children – a factor that would reduce the child support award in a guidelines case – and because it required him to pay the children’s health insurance and travel-related expenses.
5. Analysis
It is true that the court did not make findings as to the parties’ respective incomes. However, much of the information provided by Wife was undisputed while that provided by Husband was problematic.
It appears from the record that it was undisputed that Wife’s annual income was a little over $100,000, as indicated in a sworn financial statement she submitted pursuant to Maryland Rule 9-203 and as documented in a Google pay award document summarizing her compensation for 2022 and a pay stub reflecting her year-to-date compensation as of November 2022. By contrast, the information provided by Husband concerning his monthly income was contradicted by exhibits at trial. Husband had submitted a sworn financial statement in early 2022 that reported a gross income of a little more than $10,000 per month – only slightly more than that reported by Wife. However, that assertion was apparently contradicted by Husband’s tax documents – W-2 statements for 2020 and 2021 and his federal tax return for 2021 – which showed annual income of nearly $218,000 for 2020 and $313,000 for 2021. A Google pay award document that summarized his expected compensation for 2022 stated that it would total $237,000 and a pay stub reflecting his year-to-date compensation as of November 2022 confirmed that rate of compensation –approximately $20,000 per month.22 In his testimony at trial, Husband contended that the tax documents did not fully convey the extent to which his pay could vary from year to year. During closing argument at trial, Husband presented yet a third version of his actual income for the year 2020, which he calculated to be $184,875 (or approximately $15,400 per month). He arrived at that figure by including salary, annual bonus, and one-third of his restricted stock grants that had been awarded and vested that year, but excluding two years of grants that had not yet vested.23
It would certainly be reasonable for the Circuit Court to credit Wife’s representations concerning income and expenses over those of Husband. In any event, although Husband submitted various, sometimes contradictory, statements and documentation as to his own income, it appeared that his annual income was at least twice, and sometimes thrice, that of Wife. The Circuit Court appeared to recognize that proportion when it directed that certain education and extra-curricular expenses be split proportionately by the parties, with Husband bearing 65% of those expenses and Wife bearing 35%.
On appeal, Husband now reverts to the lower income figure provided in his sworn financial statement, apparently abandoning the more nuanced position he took in his closing argument at trial. He justifies the discrepancy between the income reported in his sworn financial statements and that reported in his tax
return and W-2s on the theory that the restricted Alphabet stock awards that he received in the relevant years should be disregarded as income for child support purposes even though they are apparently recognized as income for tax purposes. (This explanation does not appear in his sworn financial statements). He argues that the stock awards are property, not income.24 He contends that the General Assembly intentionally excluded stock awards from a list of certain categories of income that appears in FL §12-201.
Husband’s appellate explanation lacks merit for several reasons. First, Husband’s argument is illogical. Income and property are not mutually exclusive categories. For example, cash wages are income for the year in which they are received; the portion of that income that is saved in a bank account is property for however long it remains in that account. Second, Husband misconstrues the applicable statute. For purposes of calculating child support, the statute states that “‘actual income’ means income from any source.” FL §12-201(b)(1) (emphasis added). The statute also provides that “‘actual income’ includes [a list of types of income].” FL §12-201(b)(3). In arguing that this list is exclusive, Husband overlooks the fact that the word “includes” in the statute means “by way of illustration and not by way of limitation.” Maryland Code, General Provisions Article, §1-110. Finally, Husband cites no authority that actually supports his argument.25
As to the expenses related to the children, it appears that there is no dispute that those expenses are in the neighborhood of $8,400 per month – a figure that, per Husband’s sworn financial statement, includes Husband’s payments for health insurance and at least some of the travel expenses.
Husband’s argument that his child support obligation should be discounted because the court’s order on custody and visitation results in him having shared physical custody of the children is based on the fact that, in a guidelines case, the amount of child support is statutorily adjusted downward in situations that meet the definition of “shared physical custody.” FL §12-204(m). Husband notes that the court’s order purported to award Wife “primary physical custody” of the children, but that the effect of the order’s directions concerning custody and visitation actually resulted in Husband having shared physical custody.26 Husband reasons that the court must not have adequately taken account of the number of overnights when it fashioned the child support order.
This argument is highly speculative. The court itself spelled out the circumstances of Husband’s custody of the children in the same order in which it made the child support award. As this was an “above the guidelines” case, the court was not required to calculate a guidelines figure and apply a discount to it.
In our view, given the record before it, the Circuit Court’s child support award was not unreasonable. While the Circuit Court did not explain how it arrived at its $4,000 per month child support award, it is evident that, to some extent, it split the difference between what each party contended at trial would be an appropriate award. The court awarded approximately $1,300 more than the amount suggested by Husband at trial, approximately $1,400 less than the amount advocated by Wife prior to trial and more than $3,000 less than the amount advocated by Wife at trial.
As another point of reference, if one accepts the not unreasonable conclusion that the parties’ combined income was slightly more than $30,000 per month, the current guidelines would provide a starting point for an award in a case involving three children of at least $5,256 per month. See FL §12-204(e) (2025).27 The Supreme Court of Maryland, then known as the Court of Appeals, has held that the schedule of child support amounts set forth in the guidelines “establish a rebuttable presumption that the maximum support award under the schedule is the minimum which should be awarded in cases above the schedule.” Voishan v. Palma, 327 Md. 318, 331-32 (1992). If one then gives Husband credit for the number of overnights he was awarded, as well as his obligation to pay travel expenses and health insurance, a reduction of that figure to $4,000 per month from a presumed minimum of $5,256 per month does not appear unreasonable.
5. Summary
In an oft-quoted passage from a prior decision of this Court concerning child custody in a divorce case, Judge Wilner, then Chief Judge of this Court, reviewed various formulations of the “abuse of discretion” standard and distilled them as follows:
“[A] ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective.” North v. North, 102 Md. App. 1, 14 (1994) (en banc).
As our analysis in the prior section of this opinion indicates, it cannot be said that the child support award in this case is “well removed from any center mark” or has “no reasonable relationship” to its objective. Accordingly, in our view, the Circuit Court did not abuse its discretion in its child support award even if we might have come to a different result. In any event, we note that the amount of child support is not set in stone for the future. The statute governing child support allows for modification of the amount awarded if there is a material changes in circumstances. FL §12-104.
III Conclusion
For the reasons set forth above, we shall remand this case to the Circuit Court to clarify that its order that Husband transfer 50% of his interests in the Google 401(k) plan and his Alphabet stock account to Wife applies only to the portion of those accounts that the court determined to be marital property. We otherwise affirm the Circuit Court’s judgment with respect to marital property issues and its award of child support.
CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY WITH DIRECTION TO MODIFY ITS ORDER CONCERNING THE TRANSFER OF PROPERTY CONSISTENT WITH THIS OPINION; IN OTHER RESPECTS, THE JUDGMENT OF THAT COURT IS AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 A target-date mutual fund holds a mix of stocks, bonds, and other investments. The mix of investments changes over time and is intended to become more conservative as the target retirement date draws near. See U.S. Securities & Exchange Commission, “Target Date Funds” at https://www.investor.gov/ introduction-investing/investing-basics/investment-products/ mutual-funds-and-exchange-traded-6 (last visited March 4, 2025).
2 See Maryland Code, Family Law Article (2019 Repl. Vol. 2020 Supp.) (“FL”), §12-201(n) (definition of “shared physical custody”), (o) (definition of “shared physical custody adjustment”), §12-204 (m) (computation of child support guidelines in cases of shared physical custody).
3 The court did not explain its precise methodology and how it obtained the numbers set forth in the opinion. However, with respect to both the mutual fund shares in the Google 401(k) plan and the restricted Alphabet stock, the numbers correlate to figures that appear in relevant exhibits.
4 As will be discussed further below, these financial accounts actually consist of mutual fund shares (in the case of the Google 401(k) plan) and restricted shares or “stock units” of a specific corporation (in the case of the Alphabet stock), not sums of money, as the court’s analysis seems to imply. The value of those holdings fluctuates over time as the price of a share or stock unit goes up or down. The valuations identified by the Circuit Court in its analysis are simply snapshots at a given point of time. Since some of the snapshots used by the court were at different points of time with different share values, they were therefore not directly comparable. The use of these snapshot dollar valuations renders the court’s analysis problematic. See Part II.B.3 of this Opinion.
5 The two statements from which the court derived these numbers show that the shares did in fact fluctuate in value. Each contains a line representing “market gain/loss.” The share price apparently increased during the month covered by the 2017 statement, but declined in price over the three months covered by the 2022 statement.
6 That statement shows that Husband owned a total of 18 shares on that date, valued at a share price of $908.73 per share, with a total value of $16,357.14. Notably, however, that statement also indicated that Husband acquired six of those 18 shares on June 25, 2017 – a date after the parties were married.
As was the case with the mutual fund shares in the Google 401(k) plan, the Morgan Stanley account statements show that the value of the restricted Alphabet stock fluctuated over time. For example, the 2017 Morgan Stanley quarterly statement for Husband’s stock shows that the price of a share rose from $829.58 per share at the beginning of that period to $908.73 at the end of that period. Later stock
7 Although the court was careful to distinguish what it believed to be the portions of Husband’s holdings that were marital from those that were non-marital, the order that he
transfer 50% of each to Wife does not limit the transfer to the marital portion of his holdings. As we shall see, that ambiguity is related to one of the issues on appeal.
8 It appears that Husband changed counsel multiple times during the course of this litigation in the Circuit Court. splits increased the number of shares in Husband’s account and apparently resulted in proportional reductions in share prices. The 2022 Morgan Stanley quarterly statement shows that Husband owned 2,612.3 shares valued on the closing date at a price of $96.15 per share.
9 The court referred to the restricted Alphabet stock owned by Husband and Wife as a “retirement account,” although they each received that stock as a deferred part of their current compensation and technically not as a retirement benefit like the Google 401(k) plan. However, as interests based on deferred compensation plans are governed by the same statutory provision as those based on retirement plans, the court’s shorthand reference to them collectively as “retirement accounts” simply indicates that both types of accounts are treated similarly under the relevant statute. See FL §8-205 (a)(2).
10 As indicated earlier, the court also made a monetary award in favor of Wife that corresponded to one-half of the equity in the Georgia residence, which is not at issue on appeal.
11 That “joint statement” was apparently designed to incorporate Husband’s argument during trial that certain property he acquired after the parties separated but before they divorced (including shares in the Google 401(k) plan and the Alphabet stock account) was non-marital property. The Circuit Court properly rejected the contention that property Husband acquired post-separation but pre-divorce was non-marital. See C. Callahan & T.C. Ries, Fader’s Maryland Family Law, §13-8(f), and cases cited therein. Husband does not repeat that argument on appeal.
12 It is not clear that the record supports some of his assertions. Husband states that he owned 18 shares of Alphabet stock as of the date of the marriage. However, a Morgan Stanley statement ending June 30, 2017 that appears in the record as one of Husband’s exhibits appears to indicate that six of those shares were added to his account approximately one month after the date he married (May 25, 2017).
13 The federal Securities and Exchange Commission (SEC) describes the concept of a stock split as “[A]n increase in the number of shares of a corporation’s stock without a change in the shareholders’ equity.” U.S. Securities & Exchange Commission, “Stock Split”, available at https://www.investor. gov/introduction-investing/investing-basics/glossary/stock-split (last visited March 3, 2025). The SEC elaborates: Companies often split shares of their stock to make them more affordable to investors. Unlike issuing new shares, a stock split does not dilute the ownership interests of existing shareholders. For example, if you own 100 shares of a company
that trades at $100 per share and the company declares a twofor-one stock split, you will own 200 shares at $50 per share immediately after the split. If the company pays a dividend, your dividends paid per share also will fall proportionately.
Id.
14 Some mutual funds, such as money market mutual funds, attempt to maintain a constant share price equivalent to $1, but they are the exception rather than the rule, and neither of the target-date mutual funds in the parties’ Google 401(k) plan accounts falls into that category. Nor does the restricted Alphabet stock.
15 Some hypothetical examples illustrate the point:
Assume in each instance that a spouse owns 10 shares prior to the marriage, acquires 90 additional shares during the marriage, and accordingly has 100 shares at the time of the divorce. Thus, 10 shares are non-marital property; 90 shares are marital. (To keep the hypothetical simple, we assume that the shares do not yield dividends reinvested as additional shares).
Share price constant. Suppose that the share price begins and remains $10 per share throughout the relevant period. The 10 non-marital shares are thus worth $100 (10 x $10) prior to the marriage, as well as at the time of divorce. The total value of all 100 shares at the time of divorce is $1,000 (100 x $10) and the 90 shares acquired during the marriage are worth $900 (90 x $10) at the time of divorce. Subtracting the total valuation of the nonmarital shares when the parties married from the total valuation of all shares at the time of divorce yields the same answer –marital property worth $900. This appears to be the assumption implicit in the methodology used by the Circuit Court.
Share price rises. Suppose instead that the share price is $10 at the beginning of the marriage but rises to $20 per share by the time of divorce. In that case, the 10 non-marital shares are worth $200 (10 x $20) at the time of divorce and the total value of all shares is $2,000 (100 x $20). Subtracting the total valuation of the non-marital shares at the time of divorce from total valuation of all shares at the time of divorce results in nonmarital property worth $200 and marital property worth $1,800. If, as the Circuit Court did in this case, one uses the value of the non-marital shares at the time of the marriage ($100) instead of their value at the time of the divorce, the result is non-marital property worth $100 and marital property worth $1,900. Thus, in this example, the failure to take into account the change in share price undervalues the non-marital portion of the spouse’s property. This appears to be the assumption implicit in Husband’s “passive growth” argument; he does not provide any analysis of the record to support in the record for his contention that the “passive” change in the value of the non-marital shares was positive.
Share price falls. Suppose instead that the share price is $10 at the beginning of the marriage but falls to $5 per share by the time of the divorce. In that case, the 10 non-marital shares are worth $50 (10 x $5) at the time of divorce and the total value of all shares is $500 (100 x $5). Subtracting the total valuation of the non-marital shares at the time of divorce from total valuation of all shares at the time of divorce results in nonmarital property worth $50 and marital property worth $450. If, as the Circuit Court did in this case, one uses the value of the non-marital shares at the time of the marriage ($100) rather than
their value at the time of the divorce, the result is non-marital property worth $100 and marital property worth $400. Thus, in this example, the failure to take into account the change in share price overvalues the non-marital portion of the spouse’s property.
16 Wife “stipulated” to the valuations of non-marital portions of Husband’s accounts yielded by that methodology. Husband’s trial counsel used the same methodology in the “joint statement” presented at trial that only he and Husband signed. They came up with a different determination of non-marital property in that document only because they incorrectly treated the increase in value of Husband’s 401(k) plan account between the date of separation and the date of divorce as non-marital. See footnote 11 above.
17 Husband testified briefly and in general about the vesting of Alphabet restricted stock. However, that was in the context of attempting to persuade the court that a figure in a Google document summarizing his annual compensation should be discounted because not all of the stock he received that year had vested. That testimony did not concern whether particular stock was marital or non-marital property, but rather the determination of Husband’s income in connection with the award of child support.
18 The court may deviate from the amount yielded by the guidelines only if it determines that application of the guidelines would be “unjust or inappropriate” in the particular case and makes specific findings as to how its conclusion serves the child’s best interest. FL §12-202(a)(2)(ii),(v).
19 The General Assembly increased that threshold amount to $30,000 per month for cases filed after October 1, 2021. See Chapter 383, Laws of Maryland 2020.
20 The long form sworn financial statements submitted by the parties at earlier dates similarly estimated monthly expenses incurred with respect to the children totaling $8,381.
21 This was in contrast to the court’s very detailed analysis of the factors related to its decision on custody and visitation and the monetary award.
22 Husband argues that the Circuit Court must have incorrectly considered as part of his income a “relocation bonus” of $44,000 that he received in 2021 in connection with his move from Texas to Atlanta. However, the relevant statute includes “bonuses” as part of income for purposes of determining the amount of child support, and the relocation bonus was included in his taxable income for 2021. See FL §12-201(b)(3)(iv). The Google pay award documents in evidence demonstrated that a significant part of both Husband’s and Wife’s compensation from Google consisted of annual bonuses. Moreover, it was clear from the documentary evidence submitted to the court that Husband’s 2021 compensation significantly exceeded what he received the year before and the year after. If the court had accorded undue weight to that spike in pay, it surely would have required that Husband pay a greater proportion of extraordinary expenses than the 65%/35% split it included in its order.
23 There is a certain logic to recognizing stock awards as income in the year in which they vest. However, it is a logic that would need to be followed consistently. Thus, any stock awards granted in prior years that vested during 2020 would need to be counted as income for 2020. Husband’s trial calculation
of income did not address that issue, which would present a circuit court with a complex accounting problem. In any event, this Court has previously held that deferred income should ordinarily be included in calculations of child support for the year in which it is earned rather than for a later year in which it is received, lest the calculation of income be susceptible to manipulation by the party who has such income. Leineweber v. Leineweber, 220 Md. App. 50, 59-62 (2014).
24 As indicated earlier in this opinion, in the Circuit Court Husband contended that most of the stock awards in question are non-marital property, as they were granted or vested after the parties separated. He no longer makes that particular argument.
25 The two cases cited by Husband concerned very different situations. In Walker v. Grow, 170 Md. App. 255, 277-82 (2006), the court held that pass-through income of a Subchapter S corporation that was reported in a minority shareholder’s personal tax return (as part of the statutory scheme to avoid double taxation at the corporate and personallevels) but that had not actually been received by the shareholder could be excluded in some circumstances from the calculation of “actual income.” In Reichert v. Hornbeck, 210 Md. App. 282,
318-27 (2013), the court held that certain stock incentives that a company executive would be entitled to upon separation from the company and conditioned upon his compliance with a non-compete provision should not have been included in the calculation of his current “actual income.” Notably, the stock incentive plan in that case explicitly stated that the stock incentives were not wages received for the services performed by the executive. Id. at 323.
In contrast, the restricted Alphabet stock in this case was actually received by Husband, was included as part of his current income in the Google pay award document and was reported as income for tax purposes.
26 Husband calculates that the children would spend a total of 124 overnights with him under the court’s order. Wife disputes Husband’s specific calculation of the number of overnights assigned to him in the order, but concedes that it exceeds 92, which is the threshold for “shared physical custody.” FL §§12201(o)(1), 12-204(m)(2)(ii).
27 As noted earlier, these guidelines do not apply directly to this case.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 05 MFLU Supp. 29 (2025)
Monetary award; marital funds; property distribution
The Appellate Court affirmed the Howard County Circuit Court’s monetary award. The circuit court thoroughly considered financial documents timely submitted by wife. It ultimately determined that the amount of unaccounted-for marital funds (approximately $300,000) warranted granting a monetary award to husband in the amount of $75,000. This award mitigated unfairness in property distribution.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
BACKGROUND
The Parties’ Marriage
Ms. Tokunaga and Mr. Tokunaga were married in 2014 and are the parents of two minor children. Shortly after the parties married, they purchased a home in Fulton, Maryland (“Iager Home”).2 The parties separated in May 2020.
Around the time of the parties’ separation, Mr. Tokunaga permitted Ms. Tokunaga to use the proceeds of the sale of the Iager Home, which ultimately totaled $548,000, to purchase her own home. Mr. Tokunaga explained during the parties’ divorce proceedings that this offer was contingent on having an uncontested divorce. Subsequently, Ms. Tokunaga used a portion of the Iager Home proceeds to put a down payment on and renovate another home (“President Street Home”), and to pay attorney’s fees. She also used the furniture from the Iager Home to furnish the President Street Home. Ms. Tokunaga then deposited the remainder of the Iager Home sale proceeds into a non-marital investment account (“LPL Account”). As a result, the gifted sale proceeds were indistinctly mixed with nonmarital funds.
This case arises from divorce proceedings between Denika Tokunaga, appellant, and Lance Tokunaga, appellee. Mr. Tokunaga filed for divorce from Ms. Tokunaga in December 2021. The parties jointly filed a Maryland Rule 9-207 statement in June 2022 (“June 2022 Form”), and the divorce trial took place over four days in October 2023. In early November 2023, the Circuit Court for Howard County granted the parties an absolute divorce. Ms. Tokunaga filed a timely appeal, claiming that the circuit court made several erroneous decisions in its November 2023 judgment, as well as in denying multiple requests for postponement.
QUESTIONS PRESENTED
Ms. Tokunaga presents four questions for our review, which we have rephrased as follows:1
1. Whether the circuit court abused its discretion in granting Mr. Tokunaga a monetary award.
2. Whether the circuit court abused its discretion in calculating the amount of monthly child support owed by Mr. Tokunaga.
3. Whether the circuit court erred in denying Ms. Tokunaga’s counsel’s requests for postponement.
4. Whether the circuit court otherwise erred in relying on the June 2022 Form.
For the following reasons, we affirm.
The Parties’ Divorce
Mr. Tokunaga filed for divorce on December 28, 2021. The parties filed a joint statement of property (previously defined as “June 2022 Form”) on June 29, 2022, which stipulated that the President Street Home was marital property. Both parties also filed separate long form financial statements. After multiple settlement conferences, the court scheduled the merits hearing to begin on September 18, 2023.
On March 14, 2023, the court issued a final pendente lite (“PL”) order based on recommendations issued after an October 2022 PL hearing. The final PL order reduced the recommended amount of child support paid to Ms. Tokunaga from $4,206 to $1,658 per month. Pursuant to Maryland Rule 2-535, Ms. Tokunaga asked the court to revise its child support order, reasoning that the court did not sufficiently explain how it determined the amount of child support owed to Ms. Tokunaga. The court denied the request.
On September 14, 2023, four days before the scheduled merits hearing, Ms. Tokunaga’s counsel filed an emergency petition to withdraw due to “circumstances that [] occurred within the past 10 days[.]”3 The court allowed Ms. Tokunaga’s counsel to withdraw and placed the merits hearing on standby, but did not grant Ms. Tokunaga’s pro se postponement request filed on September 18, 2023. On October 9, 2023, Ms. Tokunaga’s new counsel entered her appearance and requested to postpone the merits hearing, which had been rescheduled to begin on
October 23, 2023. This postponement request was amended the next day to explain that Ms. Tokunaga’s new counsel had not received records from prior counsel. The court denied the amended postponement request on October 11, 2023.
On Friday, October 20, 2023, Mr. Tokunaga filed a partial 9-207 statement. The same day, Ms. Tokunaga’s counsel filed a second postponement request, citing counsel’s “acute[]” illness and physician’s instructions to return to work on November 1, 2023.
The Merits Hearing
The divorce merits hearing began as rescheduled the following Monday, October 23, 2023. At the hearing’s outset, Ms. Tokunaga’s counsel voluntarily withdrew the second postponement request:
THE COURT: Okay, and [Ms. Tokunaga’s counsel], I saw that you had filed a request for postponement last Friday.[COUNSEL FOR MS. TOKUNAGA]: I did, I wasn’t well enough to file it prior to Friday. I did call the [c]ourt on Thursday. I am going to withdraw that.
On the third day of proceedings, the court, as well as Mr. Tokunaga’s counsel, asked Ms. Tokunaga to submit an updated partial 9-207 statement:
[COUNSEL FOR MR. TOKUNAGA]: Your Honor, I would also ask if Ms. Tokunaga could draft an updated 9[-]207 basically to cover myself. Because at this point it seems like after the last 9[-]207 some money has been moved around. And I would just like to document that that is her assertion at this point now, that things are being moved around.
THE COURT: I hate to do that at the end of the case.
MS. TOKUNAGA: Your Honor, I -- I could log into my account right now.
THE COURT: I have both the [June 2022 Form] and then [Mr. Tokunaga’s statement] where he updated his amounts. So what I would be left to do is take [Ms. Tokunaga’s] old amounts and his new amounts and merge them together and see what the evidence discloses. And, of course, we want accuracy. And I think what [Mr. Tokunaga’s] counsel is asking is that if money has changed since the last disclosure if [Ms. Tokunaga] could provide that --
[COUNSEL FOR MS. TOKUNAGA]: Well --
THE COURT: These are the documents I use to distribute marital property. You want me to have accurate information on these or it would work to the detriment of one side or the other.
[COUNSEL FOR MS. TOKUNAGA]: And I understand that, Your Honor. And me just getting into the case, I didn’t have all of those numbers to confirm those numbers. And you’ve requested that we updated the statements.
THE COURT: These are the statements. I’m telling you --
[COUNSEL FOR MS. TOKUNAGA]: Right. I mean -- not that statement.
THE COURT: -- this is how I do my marital property.
[COUNSEL FOR MS. TOKUNAGA]: I’m taking about -- okay.
THE COURT: Using these pieces of paper.
[COUNSEL FOR MS. TOKUNAGA]: Not those statements. I’m talking about the LPL statements. You asked that --
THE COURT: I did ask for updated statements.
[COUNSEL FOR MS. TOKUNAGA]: Right. So then --
THE COURT: And I think [Mr. Tokunaga] produced some updated statements. I wrote all over these. I change amounts, I make notes of whether I think they are marital or non-marital. I’ve got little notes written all over the place on these . . . . These are the documents I use. So [] I would think you would love an opportunity to bring updated numbers. But like I said, we don’t take people’s words for it[] . . . . I want to make an accurate marital property determination as to what exists as close to the day as possible.
[COUNSEL FOR MS. TOKUNAGA]: [M]y understanding is that the Court is requesting that we update the statements to as close to today’s value as possible. That’s my understanding. With the statements from LPL. And as Your Honor instructed that’s what [Ms. Tokunaga will] do. She said she’ll get me the statements. And then we can go from there and . . . look at the 9[-]207.
On the fourth and final day of the hearing, Ms. Tokunaga’s counsel told the court that she had an updated 9-207 statement:
[COUNSEL FOR MS. TOKUNAGA]: I do have a 9-207 that we put together based upon the accounts that have the current values on there and everything with regard to [Ms.] Tokunaga.
THE COURT: So, I will have a Plaintiff’s 9-207 and a Defendant’s 9-207. That’s okay as long as they talk about the same things . . . . But let’s do that after [Ms. Tokunaga’s] tenminute witness. Let’s get him out of here.
After hearing testimony from the witness, the court returned to the issue of Ms. Tokunaga’s partial 9-207 statement:
THE COURT: [Ms. Tokunaga’s counsel], did you indicate you wanted to put in a 9-207?
[COUNSEL FOR MS. TOKUNAGA]: I did, Your Honor. Ms. Tokunaga wanted to sign it, and after going through all of [the] accounts and everything, I haven’t had a chance for her to actually review it and sign it. So, I wanted the opportunity before I put it in.
THE COURT: Okay. All right.
Despite these exchanges, Ms. Tokunaga’s counsel did not submit an updated 9-207 statement to the court at any point during the parties’ arguments.
The parties then presented evidence concerning the value of the President Street Home. Ms. Tokunaga claimed that the President Street Home was valued at $775,000, explaining that she “arrived at that number by averaging the price per square foot of other townhouses that sold in [the same neighborhood] recently.” Mr. Tokunaga “called a certified residential appraiser with 20 years of experience,” who testified that the market value of the President Street Home was $865,000.
During closing, the court reminded Ms. Tokunaga’s counsel that, according to the June 2022 Form, the President Street Home was marital property:
[COUNSEL FOR MS. TOKUNAGA]: And Ms. Tokunaga is requesting as her distribution from the marital property, $408,753.00, if the [court] were to rule that -- if you were to rule that [the] President Street [Home] was marital property, given the --
THE COURT: I have to rule that the President Street [Home] is marital property --
[COUNSEL FOR MS. TOKUNAGA]: Right.
THE COURT: [The President Street Home is] here as marital property on the 9-207 that was filed back in 20[22] [. . . .]
MS. TOKUNAGA: You Honor, I didn’t state marital property. *
THE COURT: You can’t -- no, you are not changing that at closing. That is not happening. [Mr. Tokunaga’s counsel is] entitled to notice. [Mr. Tokunaga is] entitled to notice.
[COUNSEL FOR MS. TOKUNAGA]: I understand, Your Honor.
THE COURT: We don’t do trial by surprise.
[COUNSEL FOR MS. TOKUNAGA]: I understand that.
MS. TOKUNAGA: Your Honor, I didn’t --
THE COURT: Absolutely not. That is not how it works.
Following closing arguments, the court held the case sub curia.
Post-Hearing Filings and the Circuit Court’s Judgment
On October 31, 2023, five days after the hearing concluded, the parties filed a joint line requesting that the circuit court allow Ms. Tokunaga to file a partial 9-207 form. Although the line states that Ms. Tokunaga’s partial 9-207 statement was “filed simultaneously []with” the line, the Maryland Electronic Courts (“MDEC”) system reflects that Ms. Tokunaga did not attach a 9-207 statement along with the line, and instead separately filed a partial 9-207 statement on November 1, 2023. This filing was stricken as deficient under Maryland Rule 20-203(d)(3). Later the same day, Ms. Tokunaga refiled another partial 9-207 statement. This filing was stricken as deficient under Maryland Rule 20-201(g). Ms. Tokunaga again attempted to refile the partial 9-207 statement on November 2, 2023—the same day the court signed the order granting the parties an absolute divorce.
In its November 3, 2023 Memorandum Opinion, the circuit court granted Mr. Tokunaga a $75,000 monetary award and reduced the amount of child support owed by Mr. Tokunaga to $749 per month.4 The court recognized that “[b]oth parties made substantial monetary and non-monetary contributions to the well-being of the family.” In particular, the court found that [Ms. Tokunaga] continually ensured the children’s needs were met, while Mr. Tokunaga spent hundreds of thousands of dollars of premarital funds to purchase and furnish the Iager Home.
In considering Mr. Tokunaga’s request for a monetary award, the court relied in part on the parties’ June 2022 Form and Mr. Tokunaga’s partial 9-207 statement. The court then credited Mr. Tokunaga’s expert testimony evidence that the President Street Home, listed as a marital asset in the June 2022 Form, was valued at $865,000. The court also found that the proceeds of the Iager Home were a gift from Mr. Tokunaga to Ms. Tokunaga for her to use to purchase a new home.
The court determined, however, that Mr. Tokunaga established a prima facie case of dissipation. Finding that Ms. Tokunaga “comingled” the Iager Home sale proceeds with marital funds by depositing the remaining proceeds into a marital account, the court estimated that Ms. Tokunaga failed to account for several hundreds of thousands of dollars in cash outflows from her personal and business accounts. Along with Ms. Tokunaga’s “lack of candor in failing to timely disclose and update her accounts[ and] the withdrawal of cash from a retirement account after representing to the [circuit c]ourt that she would not remove funds from [the] account,” the court
held that the unaccounted-for marital property, approximately $300,000, was “extant property.”
The court then delineated marital property titled in each parties’ name and attributed monetary values to each asset based on the evidence presented at trial:
The following marital property titled in [Ms. Tokunaga’s] name:
1. [President Street Home] value: $865,000; mortgage $534,000; net value $151,000.
2. 2[01]6 Mercedes: value: $28,000
3. BOA #9448 $5[,]978.90
4. BOA[ ]#4331 $1[,]430.59
5. BOA #2262 $135.12
6. LPL[ ]#2549 $136,892.81
7. LPL[ ]#9763 $9[,]482.47
8. LPL[ ]#8412 $101,972.79
9. LPL[ ]#2258 $152,958.74
10. Extant property $300,000.00
The following marital property titled in [Mr. Tokunaga’s] name:
1. [Father’s current home] value $525,000; mortgage $517,00; net value $8,000
2. 2018 Ram Truck: value $50,000; loan $20,000; net value $30,000
3. USAA #4839: $4[,]128.20
4. USAA #8318: $17[,]000.00
5. Schwab #9306: $26,547
6. Schwab #5682: $66,644
7. Schwab #3000: $53,280.99
8. Raytheon retirement savings: $222,052.37
9. Civilian TSP: $76,704.91
10. USAA: $52,081
The total of the net value of the marital property titled in [Ms. Tokunaga’s] name is $587,861.42.[5] In addition, $300,000.00 of extant property is attributed to [Ms. Tokunaga]. The total value of the marital property titled to [Mr. Tokunaga] is $556,438.47.
After valuating the marital assets, the court applied the 11 mandatory factors in Md. Code Ann., Fam. L. (“FL”) § 8-205(b):
• contributions, monetary and non-monetary[,] of each party to the well-being of the family: this was discussed above
• value of all property interests: see summary above
• economic circumstances of each party at the time the award is made: both parties make substantial income and did not make the court aware of any large debts other than their mortgages.
• the circumstances that contributed to the estrangement of the parties: the parties were incompatible causing significant conflict
• duration of the marriage: 9 years, 6 years before separation and 3 after
• age of each party: [Mr. Tokunaga] is 57, [Ms. Tokunaga] is 47.
• physical and mental condition of each party: good physical health. Mental health diagnosis [of Mr. Tokunaga, which does not impact his ability to work].
• how and when the specific property or interest in property was acquired, including the effort expended by each party in accumulating the property or interest in the property: most of
the assets were acquired during the marriage. [Mr. Tokunaga] testified that he contributed about $200,000 of premarital assets to the purchase of the marital home and the furnishings.
• contribution by either party of nonmarital property or assets to the acquisition of real property held by the parties as tenants by the entiret[y]: see above.
• any award of alimony or use and possession made in the case: none
• any other factor the court considers necessary or appropriate to consider to arrive at a fair and equitable monetary award or transfer of property: This is significant in this case[.]
Explaining the last factor, the court found that while Mr. Tokunaga makes “much more” than Ms. Tokunaga, Ms. Tokunaga “spent a lot of marital funds over a short period of time[,] . . . mixed her personal and business expenses on one credit card, paid personal expenses through her business, and [withdrew] large sums from retirement accounts incurring penalties for early withdrawal.” The court found that Ms. Tokunaga was “less than candid about her use of marital funds during the marriage and has dissipated funds,” surmising that:
Had [Ms. Tokunaga] segregated the funds and used only the segregated non[-]marital (gift) money to fund the down payment and improvements on [the President Street Home] and to pay her mortgage, the net value of the [President Street Home] would have been non-marital. There might have been cash left over (or not—we will never know).
Regarding its decision to reduce the PL child support amount, the court first observed that both parties’ financial statements “grossly” understated their incomes. The court determined, based on his salary from his current employment and his military retirement, that Mr. Tokunaga’s monthly income was $27,259.58. The court also noted that after the divorce, Mr. Tokunaga would pay $840 per month for the children’s aftercare program in addition to expenses for the children’s health insurance and karate dojo classes.
To calculate Ms. Tokunaga’s monthly income, the court analyzed gross business receipts from Ms. Tokunaga’s business and transfers to her personal bank account. Finding that personal expenses appeared to be paid out of Ms. Tokunaga’s personal and business accounts, the court computed the totals for each, $18,876.31 and $14,576.29 per month, respectively, and used the mid-point figure of $16,726.30 as Ms. Tokunaga’s monthly income.6 The court additionally noted that Ms. Tokunaga did not have a daycare expense. Based on the children’s existing activities and other expenses, as well as the parties’ shared custody agreement, the court used Child Support Obligation Worksheet A to calculate the recommended monthly child support in the amount of $749, to be paid to Ms. Tokunaga. Ms. Tokunaga subsequently filed a timely appeal challenging the monetary award, the reduction of child support, the use of the June 2022 Form, and the denials for postponement. We discuss each in turn below, and supplement with additional facts as appropriate.
DISCUSSION
I. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN GRANTING MR. TOKUNAGA A MONETARY AWARD.
On appeal, Ms. Tokunaga first challenges the portion of the circuit court’s judgment granting Mr. Tokunaga a $75,000 monetary award. Ms. Tokunaga claims that the court “erred as a matter of law” when it issued Mr. Tokunaga a monetary award, because “no current joint statement of assets (9-207) was executed and filed by the parties.” Ms. Tokunaga argues that this error precluded the court from factoring her “business expenses to her gross receipts, which artificially inflated her income.”
In response, Mr. Tokunaga maintains that Ms. Tokunaga could have argued that the President Street Home was nonmarital property at any point before closing statements, but that she failed to do so. Even if the court had allowed Ms. Tokunaga to present an updated partial 9-207 statement during closing, Mr. Tokunaga argues that the court nonetheless relied on evidence and testimony presented—not the June 2022 Form—in granting the monetary award.
A. Standard Of Review
We review the ultimate decision to grant a monetary award and the amount of such an award for abuse of discretion. Flanagan v. Flanagan, 181 Md. App. 492, 521-22 (2008) (citing Alston v. Alston, 331 Md. 496, 504 (1983)). Factual findings regarding dissipation of assets will not be reversed absent clear error. Goicochea v. Goicochea, 256 Md. App. 329, 340 (2022) (internal marks and citation omitted). “‘If there is any competent evidence to support the factual findings [of the trial court], those findings cannot be held to be clearly erroneous.’” Goicochea, 256 Md. App. at 340 (quoting Omayaka v. Omayaka, 417 Md. 643, 652-53 (2011)).
B. Discussion
In divorce cases, trial courts must follow a three-step process to determine whether a monetary award is appropriate. Wasyluszko v. Wasyluszko, 250 Md. App. 263, 279 (2021).
First, the presiding court must determine whether a disputed item of property is marital or non-marital. Id.; FL § 8-203. Significant to the first step, “[a]n agreement in a Rule 9-207 Statement that property is non-marital removes that property from the pool of property that is subject to division for purposes of a monetary award.” Brown v. Brown, 195 Md. App. 72, 107 n.18 (2010). See also, Beck v. Beck, 112 Md. App. 197, 206 (1996) (recognizing that the purposes of Rules S72 and S74, predecessors of Rule 9-207, were to allow the parties to “narrow[] the areas of dispute for the court [and] promot[e] settlements”) (internal marks and citation omitted).
Second, the court must determine the value of any marital property. Wasyluszko, 250 Md. App. at 279 (citing Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019)); FL § 8-204.
Third, “the court must decide if the division of marital property according to title would be unfair, and if so, it may make a monetary award to rectify any inequality created by the way in which property acquired during marriage happened to be titled.”
Wasyluszko, 250 Md. App. at 279-80; FL § 8-205. As part of this third step, a trial court must consider the 11 factors listed in FL § 8-205(b). Of particular significance here, FL § 8-205(b)(11) requires a circuit court to consider any factor the court believes
“necessary or appropriate . . . in order to arrive at a fair and equitable monetary award[.]”
Although a court need not specifically explain how the monetary award relates to each of the FL § 2-805(b) factors, Wasyluszko, 250 Md. App. at 279, the award must ultimately “comport with the underlying purpose of the statute, which is intended to counterbalance any unfairness that may result from the actual distribution of property acquired during the marriage strictly in accordance with its title.” Gordon v. Gordon, 174 Md. App. 583, 631 (2007) (internal marks omitted).
Here, the circuit court used the June 2022 Form, which was jointly submitted by the parties, to determine what property was marital and thus subject to distribution. Considering the evidence and testimony presented, the court determined the monetary value of each piece of marital property. The court then listed and applied all FL § 2-805(b) factors. The court cited Ms. Tokunaga’s “lack of candor” with the court and her dissipation of funds, which continued after telling the court she would not withdraw or transfer funds from certain accounts, as “significant” reasons for concluding that an equal division of the marital property would be inequitable under FL § 2-805(b)(11).
Our review of the record reveals no error by the circuit court that “artificially inflated [Ms. Tokunaga’s] income” such that the monetary award was an abuse of the court’s discretion. The court thoroughly considered financial documents timely submitted by Ms. Tokunaga, including the June 2022 Form, Ms. Tokunaga’s long-form financial statement, and bank account and other financial statements. Ultimately, the court determined that the amount of unaccounted-for marital funds (approximately $300,000) warranted granting a monetary award to Mr. Tokunaga in the amount of $75,000. We conclude that this award “comports with the underlying purpose of [FL § 8-205]” because it mitigated unfairness in property distribution— unfairness caused by Ms. Tokunaga’s inability to account for hundreds of thousands of dollars of sale proceeds from the Iager Home.
For this reason, we hold that the circuit court did not abuse its discretion in granting Mr. Tokunaga a monetary award in the amount of $75,000, and affirm.
II.
THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN CALCULATING THE AMOUNT OF MONTHLY CHILD SUPPORT OWED BY MR. TOKUNAGA.
Ms. Tokunaga next contests the circuit court’s reduction of monthly child support. Ms. Tokunaga claims the court “never analyzed nor resolved the important issue of [her] recurring monthly expenses against her gross income as required by the guidelines.” The court’s “failure” to conduct “a great deal of additional analysis required to arrive at a fair and reasonable child support amount,” Ms. Tokunaga argues, “constitutes reversible error.”
Mr. Tokunaga argues that the court adequately weighed Ms. Tokunaga’s monthly expenses. In support, Mr. Tokunaga cites directly to the circuit court’s consideration of Ms. Tokunaga’s finances in its Memorandum Opinion, which notes inconsistencies in Ms. Tokunaga’s testimony, bank and credit card statements, and other evidence of financial transactions.
As explained in detail below, we affirm the court’s child support award.
A. Standard Of Review
“A trial court’s child support award in an ‘above-guidelines’ case is reviewed under the abuse of discretion standard.” Karanikas v. Cartwright, 209 Md. App. 571, 596 (2013) (quoting Frankel v. Frankel, 165 Md. App. 553, 587 (2005)). In reviewing for abuse of discretion, we “ask[] whether the decision is off the center mark and beyond the fringe of what is deemed minimally acceptable.” In re Dany G., 223 Md. App. 707, 720 (2015).
B. Discussion
FL § 12-202(a)(1) requires a court to use the child support guidelines, codified at § 12-204(e), “in any proceeding to establish or modify child support, whether pendente lite or permanent.” The purpose of the guidelines is to “limit the role of trial courts in deciding the specific amount of child support to be awarded in different cases by limiting the necessity of factual findings” previously necessary. Petrini v. Petrini, 336 Md. 453, 460 (1994). The presumption in favor of the guidelines may be rebutted by evidence that such application “would be unjust or inappropriate in a particular case.” FL § 12-202(a)(2)(ii).
When “the combined adjusted actual income exceeds the highest level specified in the schedule . . . the [trial] court may use its discretion in setting the amount of child support.” Otley v. Otley, 147 Md. App. 540, 561 (2002) (citing FL § 12-204(d)). Therefore, if the parties’ combined adjusted actual income exceeds the maximum level specified in the guidelines, then the guidelines are “not directly applicable” to determining the proper amount of child support. FL § 12-204(e); Karanikas, 209 Md. App. at 599. See also Otley, 147 Md. App. at 561 (recognizing that a trial court may exercise its discretion when the combined adjusted actual income exceeds the maximum specified schedule in FL § 12-204(e)).
Here, we hold that the circuit court’s child support award was not an abuse of discretion because, under Karanikas and Otley, the court was not required to strictly adhere to the child support guidelines in calculating the amount of support. Karanikas, 209 Md. App. at 599; Otley, 147 Md. App. at 561. At the outset of its child support analysis, the court found that “[b]oth parties’ financial statements grossly understate their income.” Thus, instead of relying on the parties’ financial statements, the court looked at other evidence.
To determine Mr. Tokunaga’s monthly income, the court divided Mr. Tokunaga’s total yearly wages, calculating his adjusted monthly income to be $27,259.58. To determine Ms. Tokunaga’s monthly income, the court found the mid-point cash inflow figure between Ms. Tokunaga’s personal and business accounts, $16,726.30, to be Ms. Tokunaga’s monthly income. The parties’ combined adjusted actual monthly income totaled $43,985.88, and, therefore, this case is comfortably in the “above guidelines” category. FL 12-204(e); Karanikas, 209 Md. App. at 596; Otley, 147 Md. App. at 561. As such, the court was not directly bound to the child support guidelines; rather, it was empowered to exercise its discretion in fashioning an appropriate child support award.
In its exercise of discretion, the court relied on testimony,
bank account statements, and other evidence regarding the parties’ finances to determine the appropriate child support amount. The court specifically analyzed Ms. Tokunaga’s “gross receipts from her business between July 1, 2021[,] and July 31, 2023[,]” which totaled $471,907.70, and Ms. Tokunaga’s transfers to her personal banking account, which totaled $364,407.16. While Ms. Tokunaga correctly states that the court did not explicitly take into consideration Ms. Tokunaga’s business expenses, Ms. Tokunaga does not point to any specific expenses supported by the record that, in our view, push the child support award “beyond the fringe of what is minimally acceptable.” In re Dany G., 223 Md. App. at 720. For these reasons, we affirm the circuit court’s child support award.
III.
THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN DENYING MS. TOKUNAGA’S COUNSEL’S REQUESTS FOR POSTPONEMENT.
Ms. Tokunaga further contends that the circuit court erred in denying her trial counsel’s postponement requests, which were filed on October 10, 2023, and October 20, 2023, respectively.7 Ms. Tokunaga argues that the court’s denial of both motions prevented her from timely resolving “all of the issues regarding the 9-207 document[,]” thereby “severely and irrevocably prejudic[ing]” Ms. Tokunaga at trial. Mr. Tokunaga contends that the denials are not reversable because they did not prejudice Ms. Tokunaga.
A. Standard Of Review
“To grant or deny . . . a motion for [postponement] is ‘in the sound discretion of the trial court.’” Serio v. Baystate Properties, LLC, 209 Md. App. 545, 554 (2013) (quoting Das v. Das, 133 Md. App. 1, 31 (2000) (citation omitted)). We will only review the circuit court’s exercise of discretion if the court acts arbitrarily. Das, 133 Md. App. at 31 (citing Thanos v. Mitchell, 220 Md. 389, 392 (1959)). Furthermore, we will only reverse a circuit court’s decision “in ‘exceptional instances where there was prejudicial error.’” Id. (quoting Thanos, 220 Md. at 392 (1959)).
B. Discussion
Maryland Rule 2-508(a) governs requests for continuances and postponements, stating that: “On motion of any party or on its own initiative, the court may continue or postpone a trial or other proceeding as justice may require.”
The phrase “as justice may require” has been interpreted to mean that a trial court abuses its discretion in denying a postponement when the postponement was required by law, when “counsel was taken by surprise by an unforeseen event at trial” despite diligently preparing for trial, and/or when counsel was otherwise confronted by an unforeseen event and “acted with diligence to mitigate the effects of the surprise[.]” Touzeau v. Deffinbaugh, 394 Md. 654, 669-70 (2006) (internal citations omitted). The Supreme Court has also held that denying a postponement due to the inability of counsel to attend the proceeding is not an abuse of discretion. See, e.g., Cruis Along Boats, Inc. v. Langley, 255 Md. 139, 143 (1969). Mere lack of preparedness is not ordinarily a proper ground for a postponement. Quarles v. Quarles, 62 Md. App. 394, 401 (1985) (citations omitted).
Here, Ms. Tokunaga’s October 10, 2023 amended motion for postponement claimed that, “given the short time[]tables and volumes of motions, pleadings, and correspondence, [counsel] had planned to begin preparing for trial this past weekend but due to lack of receipt of any case records from prior counsel, has been unable to do so.” Mere lack of preparedness, however, is ordinarily not a justification for postponement. Quarles, 62 Md. App. at 401. Because the amended motion alleges lack of preparation, we conclude that the circuit court did not act arbitrarily in denying this request for a postponement.8
Regarding the second motion for postponement, the record shows that the circuit court did not deny the October 20, 2023 motion for postponement; rather, Ms. Tokunaga’s trial counsel withdrew her second motion for postponement at the outset of the divorce trial on October 23, 2023. Therefore, we do not address Ms. Tokunaga’s argument concerning the second motion for postponement, because the motion was withdrawn by counsel and not, as Ms. Tokunaga claims, denied by the court.
IV. THE CIRCUIT COURT DID NOT OTHERWISE ERR IN USING THE JUNE 2022 FORM.
Ms. Tokunaga additionally argues that the circuit court erroneously “allow[ed] form to triumph over substance in the filing of [her] 9-207 after the parties filed a joint line agreeing to its filing[,] since [Mr. Tokunaga] filed his separate partial 9-207.”
As we understand this argument, Ms. Tokunaga believes the court should have considered the partial Maryland Rule 9-207 statement submitted post-trial because the court considered Mr. Tokunaga’s partial Rule 9-207 statement, which was submitted pre-trial. As a result, Ms. Tokunaga argues, the court erroneously “ma[d]e its determination regarding [what is] marital and nonmarital property” by “infer[ring] [Ms. Tokunaga’s] portion of the 9-207.” In response, Mr. Tokunaga maintains that Ms. Tokunaga’s updated partial Rule 9-207 statement was a permissive filing that she did not file before or during the trial despite being afforded opportunities to do so.
The purpose of requiring Maryland Rule 9-207 statements is to simplify for the trial court property disputes by “narrow[ing] the issues (relating to property) that are actually in dispute.”
Beck, 112 Md. App. at 207 (emphasis removed) (holding such as to Rule S72 and S74 statements). Rule 9-207 statements are considered stipulations to property ownership, and may be considered even if not formally admitted at trial. Id. at 207-08.
Here, the June 2022 Form, which included several agreedupon classifications of assets, was jointly prepared by Ms. Tokunaga and Mr. Tokunaga and submitted on June 29, 2022. While Mr. Tokunaga filed a partial Maryland Rule 9-207 statement with updated asset values approximately one week before the divorce trial, Ms. Tokunaga did not file a partial Rule 9-207 statement before or during the trial. Notably, she did not do so despite Mr. Tokunaga’s counsel’s request at trial, the court explaining why filing an updated Rule 9-207 statement would be advantageous, or her trial counsel representing to the court than an updated statement would be submitted at trial.
Moreover, Ms. Tokunaga’s partial Rule 9-207 statement altered the property ownership stipulations contained in the June 2022 Form, thereby substantively changing Ms. Tokunaga’s position on the marital property subject to distribution after the
divorce trial. Considering that the Rule 9-207 statement was filed days after the trial ended, when Ms. Tokunaga had the opportunity to submit a statement before and during the trial, would be contrary to the purpose of Rule 9-207 statements, and, as the circuit court noted, Mr. Tokunaga’s right to notice. For these reasons, we do not agree that the court erroneously elevated “form over substance” in relying on the stipulations contained in the June 2022 Form, and affirm.
CONCLUSION
We hold that the circuit court did not abuse its discretion in granting Mr. Tokunaga a $75,000 monetary award because the court considered all factors required by FL § 8-205(b). Likewise, we hold that the court did not abuse its discretion in calculatingthe child support owed by Mr. Tokunaga, in denying the amended motion for a postponement, or in otherwise relying on the June 2022 Form, and affirm.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED; COSTS
TO BE PAID BY APPELLANT.
FOOTNOTES
1 Ms. Tokunaga phrased the questions as follows:
1. Did The Trial Court Err By Granting a Monetary Award When No Current Joint Statement of Assets Was Executed and Jointly Filed By The Parties and By Reducing Child Support Without A Full Analysis?
2. Did the Trial Court Err By Allowing Form to Triumph Over Substance in the Filing of [Ms. Tokunaga’s] 9-207 After The Parties Filed a Joint Line Agreeing To Its Filing Since The Appellee Filed His Separate Partial 9-207?
3. Did The Trial Court Err As a Matter Of Law Creating A Higher Burden to Prove The Existence Of Non-Marital Property?
4. Did The Trial Court Err in Denying The Postponement Request of [Ms. Tokunaga’s] New Counsel, Especially Without Comment, Knowing That Appellant’s New Counsel Was Just Entering Her Appearance a Couple of (continued)
Weeks Before Trial, and Stated In Her Postponement Request That She Was Ill?
2 Throughout this opinion, we assign names to the homes purchased by Mr. Tokunaga and/or Ms. Tokunaga based upon the homes’ respective street names.
3 Three separate law firms represented Ms. Tokunaga at different points during the parties’ underlying divorce proceedings. Counsel who filed the September 14, 2023 request to withdraw had represented Ms. Tokunaga since February 2023. Ms. Tokunaga stated in her October 9, 2023 “Request for Postponement of Trial” that her previous counsel did not inform Ms. Tokunaga of his withdrawal until “open court on September 18, 2023[.]” We note, however, that previous counsel’s September 14, 2023 petition for withdrawal states that he “ha[d] advised [Ms. Tokunaga] of the action he intend[ed] to take.”
4 During the merits hearing, Mr. Tokunaga requested that the
circuit court grant a monetary award in the amount of $383,286 in his favor. The court’s Judgment of Absolute Divorce, signed on November 2, 2023, mistakenly granted a monetary award “to [Mr. Tokunaga] in the amount of Seventy-five [sic] Dollars ($75,000.00)[.]” The court later corrected this amount to “Seventy-five Thousand Dollars ($75,000.00)[.]”
5 Based on the property values listed in the Memorandum Opinion and this Court’s calculations, the total net value of the marital property titled in Ms. Tokunaga’s name is $587,851.42, not $587,861.42. Neither party has taken issue with this tendollar difference, and we note it here solely for the sake of accuracy.
6 For example, Ms. Tokunaga’s business account included “unexplained Zelle transfers” to a housekeeper, a church, and several separate individuals.
7 At oral argument on November 14, 2024, Ms. Tokunaga’s appellate counsel argued that her trial counsel’s withdrawal of the second motion to postpone, filed on October 20, 2023, was not “necessarily a waiver,” because trial counsel had been “put in a pretty unfair position” and was in a “compromised state of mind.” Because Ms. Tokunaga’s initial brief does not raise this argument, we decline to address it. Oak Crest Village, Inc. v. Murphy, 379 Md. 229, 241 (2004) (“An appellant is required to articulate and adequately argue all issues the appellant desires the appellate court to consider in the appellant’s initial brief.”).8 In her brief, Ms. Tokunaga further contends that denying the amended motion for postponement was prejudicial because it inhibited her from timely filing a partial Rule 9-207 statement. This does not explain how, as a threshold appellate matter, the circuit court acted arbitrarily. Das, 133 Md. App. at 31. Accordingly, we do not discuss whether the denial of the amended motion for postponement prejudiced Ms. Tokunaga.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 05 MFLU Supp. 36 (2025)
Marital property; continuance; abuse of discretion
The Appellate Court vacated the Prince George’s County Circuit Court’s division of marital property and the monetary award, as well as related rulings on the claims for alimony, transfer of an ownership interest in property, child support and counsel fees. Further, the trial court’s refusal to entertain any request for a continuance because one party (or both parties) arrived late, and its insistence that the parties present evidence on all issues within an unreasonably restricted time, was not a proper exercise of discretion.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
in Lanham, Maryland, titled solely in Mr. Monju’s name. They had one child together, a son, who was born in March 2021.
On June 1, 2023, Mr. Monju filed a divorce complaint in the Circuit Court for Prince George’s County. Mr. Monju requested an absolute divorce, alleging that Ms. Mukete physically abused him and exhibited excessively cruel and vicious conduct. Mr. Monju requested sole legal custody of the child, primary physical custody, child support, equitable division of marital property, and an order requiring Ms. Mukete to pay his counsel fees.
One week after Mr. Monju filed his divorce complaint, Ms. Mukete filed a petition for protection from domestic violence, alleging that Mr. Monju physically and verbally abused her. A few days later, Mr. Monju also petitioned for protection from domestic violence, alleging that Ms. Mukete physically assaulted him and threatened him.
This appeal concerns a divorce between spouses with one minor child. After hearing testimony for about two hours, the Circuit Court for Prince George’s County granted the parties an absolute divorce, awarded primary physical custody to the father, established joint legal custody, and granted tie-breaking authority to the father. The court ordered that the father would retain ownership of the marital home and ordered the mother to vacate the home immediately. Although the court did not determine the value of any marital property, the court ordered the father to pay a monetary award in the amount of $10,000, which the court said would “account[] for her share of the marital home[.]”
The mother has appealed, challenging the decisions regarding the monetary award, division of marital property, and child custody. For the reasons stated in this opinion, we will reverse the judgment with respect to all issues other than the divorce and remand the case for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initiation of Divorce Proceedings
Athanasius Monju and Zita Mukete were married in December 2019. Beginning in 2020, they lived together in a home
Ms. Mukete filed a counterclaim in the divorce action. Ms. Mukete alleged that Mr. Monju physically and emotionally abused her, that she had served as the child’s primary caregiver since birth, and that she lacked the financial resources to support herself and the child. Ms. Mukete requested an absolute divorce based on excessively vicious conduct or cruel treatment by Mr. Monju, sole legal custody of the child, primary physical custody of the child with visitation for Mr. Monju, child support, equitable division of marital property, a monetary award, transfer of an interest in retirement plans owned by Mr. Monju, and an order requiring Mr. Monju to pay her counsel fees.
On August 2, 2023, the parties appeared for a hearing in the protective order cases. By the parties’ consent, the court issued final protective orders effective for one year. The court ordered each party to refrain from abusing or threatening to abuse the other party. The court also ordered Mr. Monju to continue paying home expenses, to live on a separate floor from Ms. Mukete, and to leave his living space only to get food from the kitchen, to care for the child, or to wash his clothes once per week. Finally, the court ordered Ms. Mukete to stay out of the basement level occupied by Mr. Monju.
B. Pretrial Matters
In divorce cases where a party seeks spousal support or child support, each party must file a current financial statement under affidavit along with the party’s pleadings. Md. Rule 9-202(e)-(f). The financial statement must include information about the party’s monthly income and expenses. See Md. Rule 9-203(a)-(b). In this case, neither party filed the required financial statement.
In divorce cases where a party seeks a monetary award or
the transfer of an ownership interest in property, the parties must file a joint statement listing all property owned by one or both parties. Md. Rule 9-207(a). The joint property statement lists each spouse’s assertions about how property is titled, whether the property is marital or non-marital property, and the value of the property. Md. Rule 9-207(b). The Rule mandates the procedure for formulating the joint property statement and requires the parties to file the statement at least 10 days before trial or by an earlier date fixed by the court. Md. Rule 9-207(c).
The court’s scheduling order, issued in September 2023, included a provision requiring the parties to file the joint statement of marital and non-marital property in advance of the settlement conference scheduled for January 2024. The scheduling order further required the parties to file a parenting plan agreement (Md. Rule 9-204.1) or a joint statement concerning decision-making authority and parenting time (Md. Rule 9-204.2) in advance of the settlement conference.
Before the settlement conference, Mr. Monju alone filed a statement of marital and non-marital property. Mr. Monju admitted that the family home, titled in his name, is marital property. He did not make any assertion about the fair market value of the home. He asserted that the marital debt attributable to the home was $372,117.66. The only other items of marital property that he disclosed were three bank accounts in his name with a combined value of $574.94. In addition, Mr. Monju asserted that he owned one vehicle, a 2011 Toyota Camry, and claimed that this vehicle was non-marital property, but he did not make any assertion about the value of the vehicle.
Mr. Monju alone filed a statement concerning decisionmaking authority and parenting time. Mr. Monju proposed that he should receive tie-breaking authority and primary physical custody of the child and that Ms. Mukete should have four nights of overnight visitation every two weeks.
For her part, Ms. Mukete filed no property statement and no statement concerning decision-making authority and parenting time by the court’s deadline or anytime thereafter.
The parties participated in a settlement conference, but did not reach an agreement. On the scheduled trial date in February 2024, the court granted Mr. Monju’s motion for a continuance for the purpose of amending his pleadings. Shortly thereafter, Mr. Monju filed an amended complaint in which he alleged that the parties lived separately since the date of the final protective orders and added a six-month separation as an alternative ground for absolute divorce. Otherwise, Mr. Monju requested the same relief that he had requested in the original complaint.
C. Circumstances of the Trial
The trial on all claims took place on June 5, 2024. The circuit court scheduled the trial to begin at 9:00 a.m. and to end five hours later, at 2:00 p.m. At the time of trial, the parties’ child was three years and two months old.
Neither party arrived at the courtroom by the scheduled starting time of 9:00 a.m. According to one of Mr. Monju’s later filings, he did not reach the courtroom until 9:45 a.m. According to one of Ms. Mukete’s later filings, she arrived at the courthouse with the child at around 10:00 a.m.
The recorded proceedings did not begin until 10:47 a.m. Counsel for Ms. Mukete told the judge that, when Ms. Mukete
arrived, she attempted to place the child in a waiting area, but court employees refused to accept the child in the waiting area because he was not able to use the bathroom without adult assistance. Counsel stated that Ms. Mukete was contacting third parties to try to find someone to pick up the child from the courthouse. In response, the judge stated: “Okay, wait, wait. I am not continuing the case. I can’t. The party came here an hour late to start with. I am ready to roll. I am ready to roll.”
As the judge attempted to discuss preliminary matters with counsel, the judge noted that the child appeared to be unable to remain quiet in the courtroom. The judge announced that Ms. Mukete was “going to have to take the child outside.” The judge added: “And then someone is going to kick them out of the hallway for making all the noise.” The transcript states that some additional “[d]iscussion regarding child noise” occurred, but this discussion was not transcribed.
The judge and counsel for the parties proceeded to discuss some of the issues in the case, in Ms. Mukete’s absence. Moments later, the judge instructed Ms. Mukete’s attorney to bring her client back into the courtroom. Mr. Monju agreed to step out of the room to watch the child so that Ms. Mukete could return to the room.
When Ms. Mukete returned, the judge told her, “there is no reason why you should be coming to court an hour late.” Ms. Mukete told the judge that she arrived late because she parked her car at the Equestrian Center and waited for a connecting bus. Ms. Mukete stated that the connecting bus never came and she eventually needed to walk the rest of the way to the courthouse with the child. The judge expressed doubt about her explanation, stating that connecting buses run “all day long” and that the judge had seen people arrive to “other courtrooms” before 9:00 a.m. that day.
The judge informed Ms. Mukete that, in the event that Mr. Monju would retain ownership of the marital home, the court would require her to leave the home immediately. The judge stated, “this might be the time for you all to try to settle this matter” and to “negotiate some kind of date that you will leave.” Moments later, the judge added: “if I give him the house and it is his house as I understand it, you may be out by the end of this week.” The judge told Ms. Mukete: “it is up to you whether you want to give your attorney a little more leeway and saying get this matter resolved and get it resolved right now.”
The judge declared a recess, which started at 11:17 a.m. When the proceedings resumed at 12:29 p.m., the parties informed the judge that they did not reach a settlement agreement. The judge directed the parties to return for trial at 1:30 p.m., after a lunch break.1
Mr. Monju and Ms. Mukete were the only witnesses to testify. Mr. Monju, as the plaintiff, began his testimony at 1:34 p.m. The judge instructed the parties to finish the presentation of evidence by 4:00 p.m.
Within a few minutes after the start of cross-examination of Mr. Monju, the court announced that it would take a “short break” and told counsel that they should “continue to talk” about settling the case. The recess lasted for 30 minutes, from 2:28 p.m. until 2:58 p.m.
When the testimony resumed, Ms. Mukete had slightly more than one hour to complete her cross-examination of Mr.
Monju and to present her entire case on all issues raised in her pleadings. Throughout this hour of testimony, the judge gave periodic reminders of the time, such as “it is now 3:18” and “it is now 3:30.”
D. Testimony of the Parties
In his testimony, Mr. Monju explained that he works as a cyber-security specialist for the Department of Justice. Mr. Monju stated that he works from home “100 percent” of the time, using computers in the basement, except that he visits his office to make financial reports about once every three months. Mr. Monju did not testify about or introduce any evidence about the income from his employment.
Mr. Monju testified that he purchased the marital home in April 2020, several months after the parties were married. Mr. Monju stated that the home is titled solely in his name and that he financed the home purchase through a loan in his name. Mr. Monju expressed his opinion that the fair market value of the home is $470,000. Mr. Monju offered a home appraisal report into evidence, but counsel for Ms. Mukete objected on the ground that the report had not been authenticated. The court did not admit the report into evidence. Mr. Monju did not testify about the amount of debt attributable the home.
Mr. Monju did not present evidence about any bank accounts or retirement accounts in his name. When asked whether the parties owned any marital property other than the marital home, Mr. Monju stated that Ms. Mukete purchased a car during the marriage and that she makes her own car loan payments and car insurance payments. Mr. Monju also stated that he owns a car that he purchased in 2012 and paid off before the marriage.
Mr. Monju expressed his opinion that the marriage deteriorated because Ms. Mukete became “nagging[,]” “scolding[,]” and “violent” toward him after the birth of their child. Mr. Monju testified that, on one occasion, Ms. Mukete kicked and broke the door of a room in which he was sleeping. Mr. Monju also testified that Ms. Mukete had broken some of his phones and damaged a wall by throwing a phone at it. According to Mr. Monju, Ms. Mukete “put[s] her hands on [him]” and “slap[s]” him “very frequently.”
Mr. Monju testified that Ms. Mukete “constantly came down” to the basement after he obtained the final protective order that required Ms. Mukete to stay away from his living space in the basement. Mr. Monju also testified that Ms. Mukete threw rice and other food onto his computers and that she poured water onto him, his bed, and his computers. Mr. Monju introduced a photograph of his basement work area after an incident in which, according to Mr. Monju, Ms. Mukete scattered his work papers onto the floor. Mr. Monju testified about a video recording of an incident in which, he claimed, Ms. Mukete threatened to spill water onto him. Mr. Monju also testified about a video recording of another incident in which, he claimed, Ms. Mukete “held [his] head and she was slapping [him].”2
Mr. Monju testified that his son previously attended daycare, but that the school had asked the parents to withdraw him. Mr. Monju testified that, in his opinion, Ms. Mukete did not spend enough time with their son because she was frequently out of the house on nights and weekends. Mr. Monju stated that, although Ms. Mukete never used corporal punishment, she
often “scolds” and “yell[s]” at their child.
During cross-examination, Mr. Monju admitted that the child, who was then three years and two months old, was “not able to talk.” Mr. Monju acknowledged that Ms. Mukete tried to arrange for a doctor to evaluate their son for Autism Spectrum Disorder through a video phone call. Mr. Monju testified that he would not agree to have a doctor “evaluate a child from a distance[.]” Mr. Monju also testified that he did not believe that his son has autism and opined that his son was not speaking because his mother was not talking to him enough or spending enough time with him. Mr. Monju stated that he was paying for one or more therapists selected by Ms. Mukete, but he opined that the therapists were “not helping” the child’s development because Ms. Mukete was “not there to converse with the child” at home.
In her testimony, Ms. Mukete stated that, to her understanding, her son “is autistic.” Ms. Mukete stated that her son “loves climbing and tearing things and he is violent.” Ms. Mukete stated that her son previously attended preschool at Kiddie Academy, but he was currently “suspended” from the school.
Ms. Mukete testified that, at the time of trial, her son was receiving treatment from multiple therapists. Ms. Mukete stated that she was taking her son to appointments four days per week: to one speech therapist on Tuesday mornings from 10:30 to 11:00; to another speech therapist on Wednesday mornings from 9:00 to 11:00; and to a behavior therapist and an occupational therapist on Wednesdays, Thursdays, and Fridays. Ms. Mukete stated that, on the three previous Tuesday mornings, she was unable to take her son to speech therapy because of work commitments. Ms. Mukete testified that Mr. Monju refused to take the child to the appointments. Ms. Mukete expressed her belief that Mr. Monju “is in denial” about their child’s need for therapy.
During cross-examination, counsel for Mr. Monju asked Ms. Mukete: “Who made the diagnosis that your son was autistic?” Ms. Mukete stated that a “medical evaluator” or “evaluating team” made the diagnosis, but she could not remember the names of the evaluators. When asked for the name of the child’s speech therapist, Ms. Mukete stated that the child sees “a couple of them[,] . . . not just one[,]” but she could not remember their names. When asked for the name of the occupational therapist, Ms. Mukete stated the name of the company where the child received occupational therapy and stated that the child sees “different people each time[.]” When asked for the name of the behavioral therapist, Ms. Mukete stated that she remembered one therapist named “Ms. Ashley” and that the child sees “different therapists . . . all the time.”
Ms. Mukete testified that, until six weeks before the trial, she worked at a grocery store near her home. Ms. Mukete produced a paystub from her former employer, but did not offer the exhibit into evidence. Ms. Mukete testified that the highest rate of pay that she earned at the grocery store was $19 per hour. Ms. Mukete stated that she lost her job because the employer was reducing its number of employees and because she had not been working regularly. According to Ms. Mukete, she could no longer work “normal” work hours, “[b]ecause of [her] son’s medical condition” and her need to take her son to therapist
appointments during the week.
Ms. Mukete testified she has a Ph.D. in law, evidently from a school in another country, but has not gained admission to practice law and had never held any paid position in the legal field. Ms. Mukete testified that, after losing her job at the grocery store, she started an unpaid internship with the State’s Attorney’s Office. Ms. Mukete stated that on weekdays she usually leaves home at 7:00 a.m. and does not leave work until 3:00 p.m. Ms. Mukete also stated that she had an “open schedule” for her position. Ms. Mukete stated that on “some days” she leaves the office during the day and returns home to take her son to appointments.
Ms. Mukete testified that, since losing her job, she started trying to earn money by selling makeup at a shopping mall during the evenings. Ms. Mukete testified that she sometimes finds someone to watch her son and that other times she takes her son with her when sells makeup. Ms. Mukete did not testify about the amount of income she earned from makeup sales.
Ms. Mukete testified that she could not afford to rent an apartment with the income that she was currently earning. Ms. Mukete stated that none of her family members live in the United States except for her cousin’s daughter, who lives in a one-bedroom apartment that she shares with her boyfriend. Ms. Mukete stated that, if she could not continue living in the marital home, she would have nowhere else to go. Ms. Mukete claimed that, despite the pending divorce proceedings, she did not try to find a new residence because Mr. Monju had “caused [her] to believe that [they] were fixing [their] problems” and told her that he was “going to withdraw” the divorce claims.
Ms. Mukete testified that, during the marriage, Mr. Monju controlled the family’s financial matters and never discussed his financial decisions with her. Ms. Mukete stated that Mr. Monju made the monthly home payments and that she paid for the family’s groceries, home furnishing, and all shopping for their child. Ms. Mukete mentioned that, in July 2023, she purchased a vehicle for which she makes payments of $650 per month.3
In her testimony, Ms. Mukete stated her opinion that Mr. Monju was “not a good dad” and that he “doesn’t really love” her or their son. Ms. Mukete testified that Mr. Monju told her that “he just married [her] to help [her].” Ms. Mukete believed that Mr. Monju “just wanted . . . sexual pleasure” and “used” her for that purpose. Ms. Mukete claimed that Mr. Monju treated her “like his maid or his slave” and sought to “control”
3 In his testimony, Mr. Monju stated that Ms. Mukete pays “about $600” per month for her car and “about $200” for her car insurance. her. Ms. Mukete admitted that she would “fight and argue” with Mr. Monju, but claimed that she did so because she “want[ed] things to be right.”
Throughout closing arguments, the trial judge made frequent comments about the lack of evidence on material issues such as the income of both spouses and the value of the marital home. The judge noted that only Mr. Monju had filed a property statement and that the only items listed were the marital home, his checking accounts, and his car. The judge observed that Ms. Mukete did not file any property statement listing her assertions as to the value of any items of property. The judge stated that he had “no idea” what the value of the home might be because Ms. Mukete “ha[d]n’t given [him] a number.”
The judge stated that “the only thing [he] got was her income basically[,]” but then corrected that statement to say that he “didn’t get that” either. The judge noted that Ms. Mukete had provided only a single paystub from her former employer, which she never introduced into evidence. The judge further noted that he did not receive any evidence about Mr. Monju’s income, child care expenses, or health insurance expenses for the child. The judge commented that he did not have enough information to make any child support calculation. The judge concluded: “I don’t have anything. The only thing I have is basically divorce and the custody. That is why I was trying to get the parties to talk earlier.”
E. Judgment of the Circuit Court
After closing arguments, the court issued an oral ruling. After noting that Ms. Mukete had relied almost entirely on her own testimony, the court stated: “I don’t find [Ms. Mukete] credible.” As an “example[]” in support of this credibility finding, the court stated that Ms. Mukete testified that Mr. Monju would not “communicate with her about anything[,]” but “went on to say that . . . they ha[d] been talking” when she claimed that they discussed reconciliation. The court emphasized: “I don’t believe anything [Ms. Mukete] said.”
The court found that the videos presented by Mr. Monju showed Ms. Mukete “attempt[ing] to pour water” on him and “slapping at” him while “screaming at” him. The court commented: “I don’t know whether I have seen anyone with [a] more outrageous attitude[.]” The court stated that Ms. Mukete’s testimony led the court to believe that she “is the only one who can control the child.” The court observed that the child “was completely out of control when with [Ms. Mukete]” in the courtroom that morning. The court also stated that, when Mr. Monju took the child outside the room, the court “did not hear any . . . of the banging” or “screaming” that the court “heard when the child was in the room with the mother.”
The court expressed disbelief in Ms. Mukete’s testimony about her child’s therapist appointments. The court reasoned that, because Ms. Mukete worked in a volunteer position, she could not lose pay or lose her position if she failed to attend. The court reasoned that, “[i]f these appointments were that important to the child, and apparently should be if they were[,]” then Ms. Mukete should have left her workplace to take the child to the appointments. The court concluded: “The child is not really doing these. You have no idea who the providers are if there are providers.”
The court mentioned some of the factors relevant to custody determinations and said that it had “considered all of these factors and others[.]” The court announced its decision that it was in the child’s best interest to establish joint legal custody, to grant tie-breaking authority to Mr. Monju, and to grant primary physical custody to Mr. Monju. The court said that it would not calculate child support because Mr. Monju had waived his claim for child support during the trial.
Expressing concern about “physical altercations[,]” the court stated that Ms. Mukete “shall vacate the home immediately forthwith.” The court stated that “whatever personal property [wa]s in each party’s physical possession w[ould] remain his or her personal property[,]” including “any bank accounts
and automobiles.” The court stated that “it sound[ed] like” the parties’ home “was in fact marital property.” The court stated that it did not have “any idea as to what the value of the property was” when Mr. Monju purchased it or “any idea as to what amount has been paid on the home” since then. The court concluded that it would order Mr. Monju to pay Ms. Mukete “the sum of $10,000[,]” either in payments of $500 per month “[o]r [as] a lump sum as he believes appropriate.”
Three weeks after the trial, on June 26, 2024, the circuit court entered its final judgment. The court granted the parties an absolute divorce on the ground of irreconcilable differences.
The court established joint legal custody and granted Mr. Monju tie-breaking authority. The court granted primary physical custody to Mr. Monju and granted visitation to Ms. Mukete on three weekends per month. The court ordered the parties to “alternate” physical custody on “all major Federal holidays[.]”
The court granted Mr. Monju “full ownership” of the marital home and ordered Ms. Mukete to “vacate the [p]arties’ [m]arital home . . . immediately[.]” The court directed Ms. Mukete, “upon vacating the home,” to notify Mr. Monju “as to her residence, or to wherever place [she] w[ould] be exercising her visitation” with the child.
The court ordered that each party would retain ownership of any vehicle titled in the party’s name. The judgment did not specify the ownership of any other items of personal property.
The court ordered Mr. Monju to pay a monetary award in the amount of $10,000 to Ms. Mukete, “accounting for her share of the marital home[.]” The court ordered Mr. Monju to pay the monetary award in installments of at least $500 for 20 months, or as a lump sum.
H. Post-Trial Matters
Within one week after the trial, Ms. Mukete made two applications for criminal charges against Mr. Monju in district court, arising from two alleged incidents. In her first application, she alleged that Mr. Monju assaulted the child. In her second application, she alleged that Mr. Monju assaulted both her and the child.
One day before entry of the divorce judgment, Ms. Mukete filed a motion for an emergency custody hearing. The emergency motion asserted that the child had missed several therapist appointments since Mr. Monju had taken the child into his care. The motion asserted that, on June 22, 2024, police officers found the three-year-old child “walking along Greenbelt Road” with no adult present. The motion also asserted that the Prince George’s County Child Protective Services agency received notice of the incident and that “criminal charges for child neglect ha[d] been filed” against Mr. Monju. The motion asked the court to grant Ms. Mukete temporary physical custody of the child until the resolution of a Child Protective Services investigation or the criminal charges against Mr. Monju.
In support of the motion, Ms. Mukete provided a copy of an incident report written by a police officer who investigated the incident of suspected neglect. The report stated that the “nonverbal” child was “found in the middle of the street” and “barefoot.” The report stated: “This was the second incident in as many days where the [child] has escaped from [Mr. Monju’s]
supervision and put himself in harm’s way[.]” The report stated that officers returned the child to Mr. Monju’s care after the incident.4
On June 26, 2024, the circuit court held a hearing concerning Ms. Mukete’s emergency motion. The matter was heard by a judge other than the trial judge. The court denied the motion, stating that it determined that the matter was not an emergency and that any custody ruling should “proceed in due course.”5
On July 8, 2024, Ms. Mukete filed a motion for new trial or, in the alternative, a motion to alter or amend the divorce judgment. Ms. Mukete asked the court to receive additional evidence about events that occurred after the trial. Ms. Mukete sought to present evidence concerning a special education assessment of the child, therapist appointments that the child missed while in Mr. Monju’s care, criminal charges brought by Ms. Mukete against Mr. Monju for assault, and the incidents of suspected child neglect at issue in her emergency motion.
In her post-judgment motion, Ms. Mukete contended that the circuit court improperly refused to grant a continuance of the trial. Ms. Mukete observed that, on the morning of trial, the court announced that it would not grant any postponement before counsel had the opportunity to request one. Ms. Mukete argued that the court unreasonably limited the presentation of evidence by “requir[ing] the parties to finish the entirety of both of their cases in chief and arguments” in a three-hour period. Ms. Mukete argued that, during the limited time available to her, she “was unable to present all of her testimony and evidence regarding the multiple and complex issues of custody, access, alimony, monetary award, and child support.”
Ms. Mukete further argued that the trial court erred when it evaluated her monetary award claim. Ms. Mukete noted that court required her “to vacate the marital home immediately, with no opportunity to remove her personal belongings or find a new place of residence.” Ms. Mukete argued that the decision to “leave [her] out in the cold with no clothing, no residence, and little to no financial support” was “shocking[.]” Ms. Mukete observed that, at trial, Mr. Monju had testified that the value of the home was $470,000. Ms. Mukete asserted that the monetary award resulted in Mr. Monju receiving “almost 80% of the value of the marital property” and argued that this result was neither fair nor equitable. Ms. Mukete asked the court to revise its judgment to award her “half of the equity” in the marital home.
Mr. Monju opposed the post-judgment motion. Mr. Monju argued that Ms. Mukete lacked corroboration for her allegations of assault or neglect and that the additional evidence discussed in her motion did not justify any revision of the judgment. Mr. Monju argued that the time limitations at trial resulted from delays caused by Ms. Mukete and that any deficiencies in the evidence resulted from lack of preparation by Ms. Mukete and her counsel. Mr. Monju argued that the court should not reconsider its monetary award because Ms. Mukete had failed to present evidence of the value of the marital home.
On July 22, 2024, the circuit court denied Ms. Mukete’s motion to alter or amend the judgment without a hearing. After the entry of that order, Ms. Mukete filed a timely notice of appeal.6
While the appeal was pending, both parties petitioned for contempt in the divorce action. Ms. Mukete alleged that Mr.
Monju refused to allow her to retrieve her belongings from the home and refused to accept the child into his care on days when he had physical custody. Mr. Monju alleged that Ms. Mukete interfered with his access by keeping the child in her care after weekend visitation and that Ms. Mukete repeatedly reentered the home without his permission.
Meanwhile, each party petitioned for protection from domestic violence. On August 28, 2024, the court issued orders in the protective order cases stating that the parties agreed to dismiss their petitions and established a time for Ms. Mukete to enter the home to obtain her clothing, certain furniture, and other household and personal items. Ultimately, in December 2024, the parties agreed to dismiss their contempt petitions in the divorce case.
As mentioned previously, Ms. Mukete had initiated three separate criminal proceedings against Mr. Monju in district court. The two assault cases ended with a nolle prosequi in September 2024. The neglect case ended with a nolle prosequi in December 2024.
DISCUSSION
Ms. Mukete, who represents herself in this appeal, filed an informal brief pursuant to Md. Rule 8-502(a)(9). Ms. Mukete challenges the circuit court’s evaluation of marital property and its decision to grant a monetary award in the amount of $10,000. Ms. Mukete challenges the court’s decisions to award Mr. Monju primary physical custody and tie-breaking decision-making authority. Ms. Mukete challenges the court’s finding that her testimony about the child’s medical condition lacked credibility. In addition, Ms. Mukete questions whether she received a fair trial, noting that the court limited the timeavailable to her and refused to exercise its discretion to order a continuance.7
Mr. Monju, through counsel, filed an informal brief in response to Ms. Mukete’s brief. Mr. Monju argues that Ms. Mukete’s contentions lack merit and that this Court should affirm the judgment as to all issues.
I. Marital Property and Monetary Award
In this appeal, Ms. Mukete challenges the circuit court’s decisions regarding the monetary award and the division of marital property. Under those decisions, the court granted Mr. Monju full ownership of the marital home, ordered Ms. Mukete to vacate the home immediately, and ordered Mr. Monju to pay a monetary award in the amount of $10,000 in monthly payments of $500. The court awarded no alimony.
Ms. Mukete asserts that the court “did not consider all relevant factors” and that its decision “did not result in a just distribution” of marital property. Ms. Mukete argues that the court failed to consider her contributions to the family and failed to consider the economic circumstances of each party. Ms. Mukete also argues that the court did not achieve an equitable distribution when it awarded her only a small percentage of the value of marital property and further devalued the award by allowing Mr. Monju to pay in monthly increments.
We agree with Ms. Mukete that there is no basis to uphold the monetary award in the amount of $10,000.
Generally, this Court reviews the decision to grant a
monetary award and the amount of the award to determine whether the trial court abused its discretion. See, e.g., Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008) (citing Alston v. Alston, 331 Md. 496, 504 (1993)). “Nevertheless, even with respect to a discretionary matter, a trial court must exercise its discretion in accordance with correct legal standards.” Alston v. Alston, 331 Md. at 504. “While a ‘trial court is vested with broad discretion in deciding whether to grant a monetary award, [ ] the exercise of that discretion should be informed and based upon reason.’” Murray v. Murray, 190 Md. App. 553, 572 (2010) (quoting Freese v. Freese, 89 Md. App. 144, 153 (1991)).
To evaluate a claim for a monetary award, the trial court must employ a three-step process. See, e.g., Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019). First, to the extent that there are disputes about the classification of property, the court must determine which items of property are marital property. Md. Code (1984, 2019 Repl. Vol., 2024 Supp.), § 8-203(a) of the Family Law Article (“FL”). Second, the court must determine the value of all marital property. FL § 8-204(a). Third, after the court determines which property is marital property and the value of the marital property, the court may transfer ownership of an interest in certain types of property (including retirement plans and real property used as the marital residence), grant a monetary award, or both, “as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.” FL § 8-205(a)(1).
When evaluating a monetary award claim, the court “must decide if the division of marital property according to title would be unfair” and, if so, the court may make an award or transfer “to rectify any inequity ‘created by the way in which property acquired during marriage happened to be titled.’” Flanagan v. Flanagan, 181 Md. App. at 519-20 (quoting Doser v. Doser, 106 Md. App. 329, 349 (1995)). In making that determination, the court must consider the following factors:
(1) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(2) the value of all property interests of each party; (3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described
in subsection (a)(2) of this section, or both.
FL § 8-205(b).
“The three-step analysis to determine what property is marital or nonmarital is not discretionary with the court, but is a requirement.” Welsh v. Welsh, 135 Md. App. 29, 59 (2000) (citing Caccamise v. Caccamise, 130 Md. App. 505, 515 (2000)); see also Jandorf v. Jandorf, 100 Md. App. 429, 438 (1994) (explaining that “[i]t is mandatory for trial judges to carry out the provisions of §§ 8-203, 204, and 205 of the Family Law Article”); Campolattaro v. Campolattaro, 66 Md. App. 68, 78 (1986) (explaining that “it is mandatory that if the division of the property is at issue, [the court] first determines which property is marital property and, then, determines the value of all marital property”); Grant v. Zich, 53 Md. App. 610, 614 (1983) (explaining that the trial court is “bound to follow” the “statutorily-mandated procedures” of identifying all marital property and determining the value of all marital property “as a precondition to an award”), aff’d, 300 Md. 256 (1984). The purpose of this process is “to acquire the requisite information from which an informed, equitable decision can be made.” Jandorf v. Jandorf, 100 Md. App. at 440.
Consideration of the factors set forth in FL § 8-205(b) “‘is mandatory’” whenever the court determines the amount and method of payment of a monetary award. Hart v. Hart, 169 Md. App. 151, 166 (2006) (quoting Malin v. Mininberg, 153 Md. App. 358, 429 (2003)). “Although the court is not required to recite each factor in making a monetary award, appellate courts must be able to discern from the record that these factors were weighed.” Hart v. Hart, 169 Md. App. at 166-67. Unless the record establishes that the trial court considered the required factors, it is “impossible to affirm” the decision. Id. at 166.
In the present case, there was no dispute that the family home, titled solely in Mr. Monju’s name, was marital property. “‘Marital property’ means the property, however titled, acquired by [one] or both parties during the marriage.” FL § 8-201(e)(1). On his property statement, filed in accordance with Rule 9-207, Mr. Monju admitted that the home was marital property. At trial, Mr. Monju testified that he purchased the home in April 2020, after the parties married in December 2019. During closing arguments, counsel for Mr. Monju expressly agreed that the home was marital property.
In its oral ruling, the circuit court ordered Ms. Mukete to “vacate the home immediately forthwith” and ordered that “whatever personal property [wa]s in each party’s physical possession w[ould] remain his or her personal property.” The court then gave the following explanation for the monetary award:
I have no idea what the monthly mortgage is. I have no idea how much was paid out but the sum is -- the total amount paid on his home may have been -- down payment may have been made prior to the parties getting married. But I have no idea what it is. Nevertheless the Court is aware that the parties apparently were married in December 2019. Don’t have any idea as to what the value of the property was then, don’t have any idea as to what amount has been paid on the home since December 2019. But it is apparently -- whatever paid since December 2019, it sounds like it was in fact marital property paid by [Mr. Monju] in this matter.
Thus the Court is going to order that [Mr. Monju] pay to
[Ms. Mukete] the sum of $10,000. $5,000(sic) each month over the next twenty months. Or as a lump sum as he believes appropriate.
The court’s written judgment included the following description of the monetary award:
ORDERED, that [Mr. Monju] shall pay to [Ms. Mukete] a marital award, accounting for her share of the marital home, in the amount of Ten Thousand and 00/100 Dollars ($10,000.00). Said award may be paid in minimum amounts of Five Hundred and 00/100 Dollars ($500.00) per month, commencing July 1st, 2024 and continuing until the full amount is paid, or as a singletime lump sum[.]
In her brief, Ms. Mukete argues that the evidence did not support the court’s “finding[]” that “the down payment of the house may have been made prior to the marriage.” As we understand the court’s ruling, the court did not make any factual finding when it said that the “down payment may have been made prior to the parties getting married.” To our understanding, the court was merely commenting on the lack of information about the down payment. Both before and after that statement, the court stated that it had “no idea” about specific details of the down payment. We conclude that the court did not base its decision on speculation that Mr. Monju may have made the down payment before the marriage.
In her reply brief, Ms. Mukete appears to argue that the trial court was clearly erroneous in failing to find that the home was marital property. To our understanding, the court did, in fact, conclude that the home was marital property. The court expressly stated, “it sounds like it was in fact marital property[.]” The court implicitly treated the home as marital property when it wrote that the monetary award would “account[] for [Ms. Mukete’s] share of the marital home[.]” Although the court could have made its findings more explicit, the record adequately establishes that the court found, correctly, that the home was marital property.
The next step of the required analysis was for the court to determine the value of all marital property. The court mentioned that it did not have information about “what the value of the property was” when Mr. Monju purchased it, the “down payment,” “the monthly mortgage” payments, or “what amount ha[d] been paid on the home” during the marriage. The court made no findings as to the value of the marital home or any other items of marital or non-marital property.
“[A]fter the court determines which property is marital property, and the value of the marital property,” the court must decide whether to grant a monetary award (FL § 8-205(a)(1)) based on the court’s consideration of the factors set forth in FL § 8-205(b). Here, the court did not mention or even allude to any of the factors that a court must consider when evaluating a monetary award claim. The court simply stated its conclusion: “Thus the Court is going to order that [Mr. Monju] pay to [Ms. Mukete] the sum of $10,000.”
From the record, this Court cannot discern how or why the court decided upon the amount of $10,000. The statement that this award somehow “account[s]” for Ms. Mukete’s undetermined “share” of some undetermined value is inadequate. Because the court did not determine the value of any marital property, the court “could not have considered the
factors” set forth in FL § 8-205(b) and “could not have applied the law properly.” Campolattaro v. Campolattaro, 66 Md. App. at 79, 81.
In his appellate brief, Mr. Monju makes no assertion that the court determined the value of the marital home. Mr. Monju makes no guess as to what value, if any, the court might have used in its analysis. Although Mr. Monju disputes Ms. Mukete’s assessment of some factors, he makes no assertion that the court even considered the required factors.
Mr. Monju nevertheless argues that Ms. Mukete “herself created a situation in which the [c]ourt had limited information on all issues, including . . . property issues[] and the parties’ income.” In particular, Mr. Monju observes that Ms. Mukete failed to file a property statement stating her assertions about the value of marital property. Mr. Monju argues that Ms. Mukete cannot complain about the court’s decisions after she “hamstrung her own case.” Although Mr. Monju has good reason to point out the failures of Ms. Mukete and her counsel, this argument does not offer any justification for the court’s ruling.
When discussing the value of the marital home, the trial court mentioned that it did not have information about matters such as the value of the home at the time of purchase, the down payment amount, the monthly payment amounts, or the total amount paid during the marriage. Those categories of information may have been useful, but only two numbers are needed to determine the value of marital property acquired by a loan. To determine the value, the court must deduct the balance of any marital debt traceable to the acquisition of the property from the fair market value of the property. See Zandford v. Wiens, 314 Md. 102, 107-08 (1988); Goldberg v. Goldberg, 96 Md. App. 771, 782 (1993); Quinn v. Quinn, 83 Md. App. 460, 468 (1990).
At trial, the court received competent evidence about the fair market value of the home. Counsel for Mr. Monju asked: “What is the value of the home?” Mr. Monju answered: “The value of the home -- my last check was about $470,000.” As the owner of the property, Mr. Monju was presumed to be competent to testify about his opinion of the value of the property. See Abdullahi v. Zanini, 241 Md. App. at 413; Brown v. Brown, 195 Md. App. 72, 119 (2010) (citing Hale v. Hale, 74 Md. App. 555, 567 (1988)). Ms. Mukete raised no objection to Mr. Monju’s testimony that the value of the home was $470,000. Counsel for Ms. Mukete made an objection to the admission of an appraisal report concerning the value of the home, and the court did not admit the report into evidence. Although the appraisal report may have provided additional evidence of the value of the home, Mr. Monju’s opinion testimony alone was sufficient evidence of the fair market value.
Before trial, Mr. Monju had filed a property statement in accordance with Md. Rule 9-207. On that statement, Mr. Monju stated that the balance of “Liens, Encumbrances, or Debt Directly Attributable” to the acquisition of the home was $372,117.66. Although no party offered the property statement into evidence, the court referred to that document during the trial. Mr. Monju’s representations about the debt attributable to the home “constitute judicial admissions and may be considered as evidence without the necessity for the formal introduction at trial” of the property statement. Beck v. Beck, 112 Md. App. 197,
205 (1996); see also Brown v. Brown, 195 Md. App. at 107 n.18; Flanagan v. Flanagan, 181 Md. App. at 529.
Contrary to the court’s reasoning, the record shows that the court received sufficient evidence to determine the value of the marital home. Mr. Monju testified that the value of the home was $470,000.00, and he admitted that the balance of debt attributable to the home was $372,117.66. The evidence supported a finding that the net value of the home was no less than $97,882.34. Generally, a trial court may not engage in speculation outside of the evidence to determine the value of marital property. See Blake v. Blake, 81 Md. App. 712, 729 (1990); Thomasian v. Thomasian, 79 Md. App. 188, 202-03 (1989); Rosenberg v. Rosenberg, 64 Md. App. 487, 526 (1985).
As the trial court pointed out, Ms. Mukete did not file her own property statement as required by Md. Rule 9-207. Consequently, the court lacked information about Ms. Mukete’s assertion as to the value of the marital home. During the trial, counsel for both parties mentioned that Rule 9-207 authorizes certain sanctions when a party fails to file the required financial statement. Rule 9-207(d) provides that, “[i]f a party fails to comply with this Rule, the court, on motion or on its own initiative, may enter any orders in regard to the noncompliance that are just[.]” Permissible sanctions include: “(1) an order that property shall be classified as marital or non-marital in accordance with the statement filed by the complying party; [or] (2) an order refusing to allow the noncomplying party to oppose designated assertions on the complying party’s statement filed pursuant to this Rule, or prohibiting the noncomplying party from introducing designated matters in evidence.” Id 8
Under Md. Rule 9-207(d)(2), the trial court may have had authority to refuse to allow Ms. Mukete to oppose Mr. Monju’s assertion that the debt attributable to the marital home was $372,117.66. The court also may have had authority to preclude Ms. Mukete from introducing other evidence to oppose Mr. Monju’s testimony that the fair market value of the home was $470,000.00. The Rule did not, however, authorize the court to sanction Ms. Mukete by finding that the net value of the marital home was far less than what Mr. Monju had claimed or by awarding her only a small percentage of that value.
This Court consistently refuses to uphold monetary awards when a trial court fails to determine the value of marital property. See Quinn v. Quinn, 83 Md. App. at 468 (concluding that trial court committed reversible error “by failing to determine the value of certain marital property prior to making the monetary award”); Campolattaro v. Campolattaro, 66 Md. App. at 78-79 (concluding that trial court committed reversible error where it “did not determine what property was marital property” and “did not value any of the property of the parties”); Grant v. Zich, 53 Md. App. at 616 (concluding that trial court was “without authority” to grant a monetary award where the court did not “determine the value of the marital property”).
This Court has on numerous occasions refused to uphold monetary awards when a trial court does not adequately explain its decision in light of the statutory factors. See Flanagan v. Flanagan, 181 Md. App. at 522 (concluding that trial court abused its discretion where it “concluded, in a single sentence, that $30,000 was an appropriate award” and “did not adequately explain the basis for its monetary award”); Hart v. Hart, 169 Md.
App. at 166 (concluding that trial court abused its discretion in making monetary award where “there [wa]s no indication that the court considered the mandatory factors”); Campolattaro v. Campolattaro, 66 Md. App. at 78 (concluding that trial court abused its discretion where the court “neither mention[ed] the statutory factors, nor provide[d] any clue as to the manner in which those factors were considered”); Ward v. Ward, 52 Md. App. 336, 343-44 (1982) (concluding that trial court abused its discretion where it “gave no more than lip service” to the statutory factors).
This Court consistently refuses to uphold monetary awards when the award results in a sizeable and unwarranted disparity between spouses. See Flanagan v. Flanagan, 181 Md. App. at 522 (concluding that trial court abused its discretion where the monetary award “resulted in [one party’s] entitlement to almost 90% of the value of the marital property”); Long v. Long, 129 Md. App. 554, 577 (2000) (concluding that trial court abused its discretion where it “awarded less than 20 percent of the marital assets” to the spouse “who held title to under one percent of those assets”); Ward v. Ward, 52 Md. App. at 343-44 (explaining that the appellate court perceived “nothing fair or equitable in a five to one ratio” awarded by the trial court); see also Freese v. Freese, 89 Md. App. at 152 (vacating the trial court’s denial of monetary award where the court “may not have fully appreciated the substantial discrepancy in the respective amounts of marital property retained by each of the parties”). Ordinarily, a decision that results in disproportionate shares of the value of marital property “defeats the purpose of the monetary award, which is to achieve equity between the spouses where one spouse has a significantly higher percentage of the marital assets titled” in that spouse’s name. Long v. Long, 129 Md. App. at 577-78.
In this case, the circuit court abused its discretion when it decided the disposition of marital property and the monetary award. The court failed to determine the value of the marital home that served as the purported basis for the award. To the extent that the court believed that the evidence was insufficient to determine the value of the home, that belief was erroneous. The court received competent evidence that the net value of the home was $97,882.34. The court did not explain its rationale for awarding $10,000.00, payable in monthly increments of $500.00. The court gave no indication that it considered any of the factors that the court must consider when deciding the amount and method of payment. The award resulted in a gross disparity, in which Mr. Monju retained about 89.8 percent of the value of the marital home and Ms. Mukete received about 10.2 percent of that value, over a period of 20 months.
When an appellate court concludes that a trial court erred or abused its discretion in evaluating a claim for monetary award, the proper remedy is to reverse or vacate the judgment in part and to remand the case for further proceedings. See Alston v. Alston, 331 Md. at 509-10. After the appellate court sets aside a monetary award, the trial court must reassess the value of marital property and reconsider the required factors when it makes a new monetary award. See Fuge v. Fuge, 146 Md. App. 142, 176 (2002). On remand, the trial court must consider the parties’ economic circumstances at the time of the new monetary award, not the circumstances at the time of the first divorce trial. See id. at 176-77. In other words, the court must
“take a fresh look at the parties’ circumstances to ensure the ‘equitable’ award that the law requires.” Id. at 177.
In divorce cases, claims for equitable division of marital property, a monetary award, transfer of an ownership interest in property, alimony, child support, and counsel fees “‘involve overlapping evaluations of the parties’ financial circumstances.’”
K.B. v. D.B., 245 Md. App. 647, 679 (2020) (quoting St. Cyr v. St. Cyr, 228 Md. App. 163, 198 (2016)). The factors relevant to these types of claims “are so interrelated that, when a trial court considers a claim for any one of them, it must weigh the award of any other.” Turner v. Turner, 147 Md. App. 350, 400 (2002). “Therefore, when this Court vacates one such award, we often vacate the remaining awards for re-evaluation[,]” even if neither party raises any direct challenge to those decisions. Id.
In the present case, the court’s erroneous evaluation of the most significant marital asset left the court without any accurate assessment of the parties’ financial circumstances. At a minimum, therefore, this Court will set aside the rulings on the division of marital property and the monetary award, as well as the related rulings on the claims for alimony, transfer of an ownership interest in property, child support, and counsel fees. See Murray v. Murray, 190 Md. App. at 572-73. The parties are entitled to present additional evidence on these matters, so that the court can make an accurate assessment of the parties’ financial circumstances and make informed decisions on these issues. See Fuge v. Fuge, 146 Md. App. at 177; see also Walter v. Walter, 181 Md. App. 273, 288 (2008) (stating that, after the appellate court vacated an alimony decision, “the parties may introduce additional evidence on the issue of both of their earnings, past and present, including evidence that is up-todate”).
In her brief, Ms. Mukete also argues that it is “shocking” that the court “sent [her] directly to the streets with no provision for [] substitute housing.” She further argues that it was unfair for the court to “devalue[]” the monetary award in $500 monthly increments, especially in light of the court’s denial of her claim for alimony.
In response, Mr. Monju offers only an abstract defense of these aspects of the court’s decision. He argues: “It is absolutely not an abuse of discretion that at the end of a marriage, the trial court requires the party who is not the owner of the home to vacate said home.”
This response does not even attempt to explain how it was equitable or reasonable under the circumstances for the court to order Ms. Mukete to “vacate the home immediately forthwith[,]” with nothing except “whatever personal property [wa]s in [her] physical possession[.]” Based on the evidence presented, Ms. Mukete had no income aside from whatever profits she might manage to earn from selling makeup (which she had started to do just six weeks earlier), no known assets other than a car for which she owed at least $600 per month plus insurance payments, and no known financial resources except the $500 per month that the court ordered Mr. Monju to pay as a monetary award.
The decision apparently left Ms. Mukete without the means or a reasonable opportunity to find housing, while Mr. Monju remained a homeowner with steady income from a full-time job. A trial court abuses its discretion when it ignores or fails
to consider the economic circumstances of each party when the court determines the disposition of property upon divorce and the amount and the method of payment of the monetary award. See McCleary v. McCleary, 150 Md. App. 448, 45960 (2002). Moreover, it is “all the more important for the trial court properly to categorize and value all of the property of the parties” in cases where there may be a relatively “small amount of marital property[.]” Jandorf v. Jandorf, 100 Md. App. at 440.
In his brief, Mr. Monju argues that the court was not required to consider any economic disparity between the parties because Ms. Mukete “did not put on any evidence of [Mr. Monju’s] income, so as to show an economic disparity.” This argument is unconvincing. It is true that the court did not receive evidence to quantify the economic disparity between the parties. It is not true that the court lacked evidence of an economic disparity. At trial, there was no dispute that Mr. Monju made the home payments throughout the marriage. There was no dispute that Mr. Monju worked full time or that Ms. Mukete lost her fulltime job before the divorce. No one contradicted Ms. Mukete’s testimony that she could not afford housing with whatever profits she might earn from selling makeup at a shopping mall. In short, the evidence conclusively showed that one spouse could afford housing; the other spouse could not. No fact-finder could reasonably find that there was no economic disparity between the parties at the time of the monetary award.9
If Ms. Mukete is correct in her argument that the court abused its discretion when it “sent [her] directly to the streets” without a meaningful opportunity to secure housing, this Court can no longer grant any effective remedy to those aspects of the judgment. An issue presented to a court is moot if the court “cannot provide an effective remedy.” Coburn v. Coburn, 342 Md. 244, 250 (1996). Appellate courts ordinarily will not decide a moot issue if an appellate ruling would be “without effect” as to consequences of the trial court’s decision. La Valle v. La Valle, 432 Md. 343, 353 (2013). Because this Court cannot provide an effective remedy for the immediate consequences of the July 2024 judgment, it would serve no practical purpose to decide whether the court abused its discretion in that regard. On remand, however, the court must consider Ms. Mukete’s ability to pay for housing as part of its evaluation of the claims, including her claims for alimony and a monetary award.
II. Child Custody
In this appeal, Ms. Mukete further challenges the circuit court’s custody decisions. She argues that the evidence does not support the court’s determination that it was in the child’s best interest to grant Mr. Monju primary physical custody and tie-breaking authority.
In her informal brief, Ms. Mukete argues that the trial court failed to consider the evidence of the child’s medical needs. Ms. Mukete asserts that the child, who was three years old and non-verbal at the time of trial, has been diagnosed with autism. Ms. Mukete also asserts that Mr. Monju refuses to accept the diagnosis and refuses to take the child to medical appointments. Ms. Mukete argues that the trial court erred when it refused to credit her testimony about the child’s medical diagnosis and treatments merely because she could not remember the names of different doctors and therapists who treated the child. Citing
the information submitted with her post-judgment motion, Ms. Mukete also asserts that, within days after Mr. Monju took the child into his care, police officers found the child “on the streets about [a] 20[-minute] walk away from the house without shoes . . . exposed to moving cars.”
In his brief, Mr. Monju argues that the trial court did not abuse its discretion when it made its custody determination. Mr. Monju observes that Ms. Mukete presented no evidence to corroborate her testimony about the child’s diagnosis and treatment and argues that the court was not required to credit her testimony on those matters. Mr. Monju asserts that Ms. Mukete was “unable to provide basic information” about the diagnosis and treatment and that she “testified in a contradictory manner” by claiming that she took the child to appointments at the same time that she claimed to be working at her volunteer job. Mr. Monju also argues that the alleged incident of neglect did not occur until after the trial and that this allegation was not a sufficient reason to revise the custody decision.
As the final question presented in her brief, Ms. Mukete questions whether she received a fair trial. At the end of her argument on custody issues, Ms. Mukete complains that the court afforded her “a relatively shorter trial time” after she arrived late for trial with the child in her care and the child was unable to remain quiet in the courtroom. Ms. Mukete writes: “The court had the discretion to a continuance [sic] but denied exercising it.”
In response, Mr. Monju argues that Ms. Mukete’s brief failed to “make any argument as to how the trial court abused its discretion” by giving her “a shorter period of time at trial to put on her case[.]” Mr. Monju argues that Ms. Mukete’s brief “fails to note why denying a postponement” was an abuse of discretion.
In her reply brief, Ms. Mukete observes that the court required the parties to present evidence in less than three hours, even though the court originally allotted five hours. Ms. Mukete asserts that the trial judge “did not want to hear the case” and “expedited the hearing.” Ms. Mukete argues that, as a result of the time limits, she “did not have a full and fair opportunity to present [her] case.”
As a threshold matter, we will address the contention that Ms. Mukete’s brief fails to make an adequate argument to challenge to the court’s decisions to decline to order a continuance and to limit the time for presentation of evidence. Under Md. Rule 8-504(a)(6), which applies to most appeals in this Court, an appellate brief must contain “[a]rgument in support of the party’s position on each issue.” This Rule “contains no requirement that an appellant must cite case law in support of [the appellant’s] arguments.” Petty v. Mayor & City Council of Baltimore City, 232 Md. App. 116, 121 (2017). An argument need not be a “pinnacle of clarity” to be sufficiently presented for appellate review. Id. Even a “scant” argument raised in an appellate brief may be sufficient for the appellate court to consider an issue, as long as a reader can fairly discern the factual or legal basis for the argument. Barnes v. State, 437 Md. 375, 388 (2014); see also Thompson v. State, 229 Md. App. 385, 400-01 (2016).
If an argument is not adequately presented in an appellate brief, the appellate court ordinarily should decline to consider the argument. See Moosavi v. State, 355 Md. 651, 660 (1999). “Nonetheless, in a case where arguments are not made in an
appellant’s brief,” the appellate court may, “‘in its discretion, consider[] the arguments’” despite the deficient briefing. Id. at 661 (quoting Ritchie v. Donnelly, 324 Md. 344, 375 (1991)). “Similarly, the appellate court generally retains discretion to consider an argument that is belatedly raised[,]” such as an argument articulated for the first time in a reply brief. State v. Jones, 138 Md. App. 178, 241 (2001), aff’d, 379 Md. 704 (2004). In this appeal, Ms. Mukete represents herself and filed an informal brief. This Court’s current procedures permit parties to file informal briefs in certain cases, including custody cases in which the appellant is not represented by an attorney. An appeal designated for informal briefing generally “is not subject to the requirements of Rule 8-501 through 8-504[.]” Md. Rule 8-502(a) (9). Nevertheless, informal briefs “shall comply substantially with the Guidelines for Informal Briefs” issued by this Court. Appellate Court of Maryland, Administrative Order (effective Dec. 19, 2022). The Guidelines state that “the appellant must identify issues that explain why the trial court erred or made a mistake in deciding the case and why the decision should be reversed or modified.” Generally, this Court “liberally construes” filings by self-represented parties. Huertas v. Ward, 248 Md. App. 187, 207 (2020) (citing Mitchell v. Yacko, 232 Md. App. 624, 643 n.12 (2017)).
Although the decision is a close one, we conclude that Ms. Mukete’s informal brief adequately raises the issue of whether the court denied her a fair trial by refusing to consider ordering a continuance and by limiting the time for the presentation of evidence. Alternatively, even if her informal brief does not substantially comply with the Guidelines, we exercise our discretion to consider this issue because of the nature of the custody determination at stake. The question of whether the court denied Ms. Mukete a fair opportunity to present her case affects not only her own rights and interests but also the right of the parties’ three-year-old son to “have his best interests considered in a full evidentiary hearing.” Wells v. Wells, 168 Md. App. 382, 397 (2006) (discussing Flynn v. May, 157 Md. App. 389 (2004)).
As discussed previously, the circuit court scheduled a fivehour trial to begin at 9:00 a.m. Neither party arrived at the courtroom by the scheduled starting time. Mr. Monju did not reach the courtroom until 9:45 a.m. Ms. Mukete arrived at the courthouse at around 10:00 a.m., unsuccessfully attempted to place the child in the court’s waiting area, and then contacted care providers to find someone to pick up the child from the courthouse. When the recorded proceedings began at 10:47 a.m., counsel informed the judge that Ms. Mukete was still trying to find a third-party care provider to pick up the child.
Before either party had the opportunity to request a postponement or continuance, the judge stated: “Okay, wait, wait. I am not continuing the case. I can’t. The party came here an hour late to start with. I am ready to roll. I am ready to roll.” These statements made it clear that any request for a continuance or postponement would have been futile. See In re Emileigh F., 353 Md. 30, 36-37 (1999).
Maryland Rule 2-508 governs a continuance or postponement of trial. It provides: “On motion of any party or on its own initiative, the court may continue or postpone a trial or other proceeding as justice may require.” Md. Rule 2-508(a)
(emphasis added). Although the decision of whether to grant a continuance or postponement falls “within the sound discretion of the trial court[,]” there are “exceptional instances in which the failure to grant a continuance will constitute reversible error.” Reaser v. Reaser, 62 Md. App. 643, 648 (1985).
“[A] trial judge who encounters a matter that falls within the realm of judicial discretion must exercise [the judge’s] discretion in ruling on the matter.” Gunning v. State, 347 Md. 332, 351 (1997) (emphasis in original). Any “proper exercise of discretion involves consideration of the particular circumstances of each case.” Id. at 352. “A failure to exercise [a court’s] discretion, or a failure to consider the relevant circumstances and factors of a specific case, ‘is, itself, an abuse of discretion[.]’” Cagle v. State, 462 Md. 67, 75 (2018) (quoting 101 Geneva LLC v. Wynn, 435 Md. 233, 241 (2013)). A trial court’s “unyielding adherence to [a] predetermined position” on a matter within the court’s discretion “amounts to a misunderstanding of the law and a failure to properly exercise discretion.” Gunning v. State, 347 Md. at 351. “The court’s failure to fulfill this function can amount to error, that ‘ordinarily requires reversal.’” Id. (quoting Maus v. State, 311 Md. 85, 108 (1987)).
In the present case, the trial court’s refusal to entertain any request for a continuance because one party (or both parties) arrived late was not a proper exercise of discretion. The fact that a party arrives late, or even late without any valid excuse, is not a ground to refuse to consider whether the interests of justice may require a continuance. Any decision about whether to grant a continuance must be made in light of all relevant circumstances. At a minimum, these circumstances include the nature of the issues in the case. At the beginning of the trial here, the court acknowledged that it had “no idea as to what the issue [wa]s or what the issues [we]re in this case.” The court also acknowledged that it had “no idea about custody” issues. The court, therefore, could not have exercised sound discretion when it determined that it would not or could not continue the case beyond the time originally allocated for the trial.
The decision to refuse to entertain any request for a continuance affected all proceedings that followed. Before hearing any testimony, the court suggested to Ms. Mukete that she should “give [her] attorney a little more leeway” to settle the case. At the court’s direction, the attorneys and parties engaged in settlement discussions from 11:17 a.m. until 12:29 p.m., when they informed the court that they did not reach a settlement. After a lunch recess, Mr. Monju began his testimony at 1:34 p.m. Shortly after Mr. Monju began his testimony, the court instructed the parties to finish presenting evidence by 4:00 p.m. A few minutes after the start of cross-examination of Mr. Monju, the court took another recess, telling counsel that they should “continue to talk” about settling the case. This recess lasted for 30 minutes, from 2:28 p.m. until 2:58 p.m.
As a result of this chain of decisions, Ms. Mukete had slightly more than one hour to complete almost the entirety of her crossexamination of Mr. Monju and to present her entire case on all issues raised in the pleadings: divorce, legal custody, physical custody and visitation, division of marital property, monetary award, transfer of an ownership interest in retirement plans, alimony, child support, and counsel fees.
During the time allocated by the court, the parties testified
primarily about the reasons for the demise of their marriage, some of their financial circumstances, and certain disagreements concerning their child. Mr. Monju testified briefly about the value of the marital home, but the parties did not testify about the value of any other assets, such as their bank accounts and vehicles. The parties testified about their employment situations and work schedules, but neither party testified about the amount of income they were earning. They mentioned certain child care expenses and health care expenses for the child, but they did not testify about the amount of those expenses.10
Not surprisingly, when the two hours of testimony ended, the court lacked much of the information needed to the evaluate the claims raised in the case. The court stated that it received virtually no information about marital property aside from some information listed on Mr. Monju’s property statement. The court also stated that it did not receive information about the amount of income made by either party, child care expenses, or health insurance for the child. The court said: “I don’t have anything. The only thing I have is basically divorce and the custody. That is why I was trying to get the parties to talk earlier.”
While making its oral ruling, the court discussed the lack of clarity about what physical custody schedule each party was requesting. The court also highlighted the lack of information about the care of the child while he was living in a home with his parents on separate floors. The court observed, “one simple question was where does the child sleep?” The court noted that Ms. Mukete mentioned that the child “mostly” sleeps with her. The court said that the testimony did not reveal “whether the child has a room.”
Given the overall lack of information, it is not surprising that the court provided only a limited discussion of the factors that a court ordinarily considers when it makes a custody decision.11
The court announced the following findings: that Ms. Mukete’s testimony lacked credibility; that the video exhibits showed her slapping and screaming at Mr. Monju; that Ms. Mukete was “not really” taking the child to therapist appointments; and that the child was “out of control” with Ms. Mukete in the courtroom, but the court did not hear noise when the child was outside the room with Mr. Monju. Aside from those findings, the court provided no detailed analysis of any factors relevant to evaluating the child’s best interests. The court stated:
And there are some factors that the Court must consider. The fitness of the parent. The character and reputation and the Court has considered all of these factors and others in deciding what is in the best of the child [sic] . . . in this case.
Any agreement between the parents. Once again the character and reputation. Ability to maintain family relationships. Child’s preference. Material opportunity. Age, health and gender of the child. Residences of the parent and opportunity for visitation. Any length of separation, any prior abandonment or surrender of custody. And I have not heard any of that.
The religious views and the father has indicated that the mother can have the child because she takes the child to church. Any disability. The Court has not heard any. The fact that -- in addition to not -- and finding that the mother’s testimony is completely lacking in credibility, the Court must decide what is in the best interest of the child in terms of custodial arrangement.
After that summary, the court announced its conclusion that
it was in the child’s best interest to establish joint legal custody, to grant tie-breaking authority to Mr. Monju, and to grant primary physical custody to Mr. Monju with visitation for Ms. Mukete on three weekends per month.
In her motion to alter or amend the judgment, Ms. Mukete contended that the trial court “abused its discretion in not allowing a continuance of trial to afford [Ms. Mukete] sufficient time to present testimony and evidence.” Ms. Mukete asserted that, after the parties arrived late for trial and “[b]efore either counsel had an opportunity” to suggest the appropriate course of action, the court stated that it would not grant any postponement. Ms. Mukete observed that, “[r]ather than granting a continuance to allow the parties to fully present testimony and evidence, the [c]ourt required the parties to finish the entirety of both of their cases in chief and arguments” within three hours. Ms. Mukete argued that, within the time limits imposed by the court, she “was unable to present all of her testimony and evidence regarding the multiple and complex issues of custody, access, alimony, monetary award, and child support.” Ms. Mukete argued that, under the circumstances, the court’s “refusal to allow the trial to extend past 4:30 p.m.” was unreasonable. The motion asked the court to order a new trial or to “allow for additional testimony and evidence” so that Ms. Mukete could “adequately address” all issues in the case.
Opposing the motion to alter or amend the judgment, Mr. Monju argued that Ms. Mukete was not entitled to any postponement or continuance. His response included many factual assertions in support of the argument that he was either blameless or at least “not the primary reason” for the delay on the morning of trial. Although Mr. Monju acknowledged that he arrived 45 minutes late for trial, he argued that Ms. Mukete was responsible for the delays because she arrived even later than he did and because she did not make arrangements to find child care on the date of the trial.
Mr. Monju’s argument has limited force, because it fails to explain why the responsibility for making arrangements for the child’s care fell primarily, if not entirely, on Ms. Mukete. At the time of trial, the parties lived in the same home and shared joint responsibility for the care of their child. The court had issued no pendente lite order establishing any shared physical custody schedule. There was no evidence that the parties reached any agreement on a shared custody schedule. Accordingly, there was no basis to conclude that Ms. Mukete alone was responsible for the parents’ failure to arrange for child care on the trial date.
But even if it is true that Ms. Mukete alone caused the delay of the trial without any valid excuse, this fact would not justify the decision to refuse to consider granting a continuance. In any custody dispute, “‘[t]he court’s objective is not . . . to punish the less capable parent,’” but to decide the arrangement that “‘will promote the best interest of the child.’” Burdick v. Brooks, 160 Md. App. 519, 528 (2004) (quoting Hughes v. Hughes, 80 Md. App. 216, 231 (1989)) (further quotation marks omitted). In this case, the parties’ three-year-old child “had an indefeasible right to have any custody determination concerning him made, after a full evidentiary hearing, in his best interest.” Flynn v. May, 157 Md. App. at 410. “He did not lose that right” when his mother arrived late for the trial. Id.
A trial court “commits legal error when it makes a decision
that impacts a custody determination without first considering how that decision will affect the child’s ‘indefeasible right’ to have [the child’s] best interests considered.” A.A. v. Ab.D., 246 Md. App. 418, 448 (2020) (quoting Flynn v. May, 157 Md. App. at 410). “Plainly, a child’s best interests are best attained when the court’s decision is as well-informed as possible.” A.A. v. Ab.D., 246 Md. App. at 447. “[P]rocedural defects” caused by one party’s conduct “should not be corrected in a manner that adversely impacts the court’s determination regarding the child’s best interests.” Id. at 446 (citing Flynn v. May, 157 Md. App. at 410-11). Accordingly, even when a parent fails to answer a custody pleading, the court may not make a custody decision by default. Wells v. Wells, 168 Md. App. at 397; Flynn v. May, 157 Md. App. at 411-12. Similarly, even when a parent violates the parent’s disclosure obligations under discovery rules, the court cannot preclude the parent from presenting evidence relevant to the child’s best interests. A.A. v. Ab.D., 246 Md. App. at 447. It follows that, despite Ms. Mukete’s failings, the court had an obligation to allocate a reasonable amount of time to obtain evidence from which the court could make an informed decision about the child’s best interests.
“Child custody and visitation decisions are among the most serious and complex decisions a court must make, with grave implications for all parties.” Conover v. Conover, 450 Md. 51, 54 (2016). “‘[T]here is no such thing as a simple custody case[.]’” Bienenfeld v. Bennett-White, 91 Md. App. 488, 502 (1992) (quoting Montgomery County Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 414 (1978)). The present case was no exception. Although the parties disagreed about the child’s medical diagnosis, there was no dispute that their child was, as Mr. Monju described it, “not able to talk” at the age of three years and two months. No one disputed that the child had certain behavioral issues, or that the daycare provider had asked the parents to withdraw the child from daycare. “Also, it was undisputed that throughout the litigation, [the child] had been living in one house, with both of his parents—a highly unusual situation.” Wells v. Wells, 168 Md. App. at 398. This custody matter required more than an abbreviated hearing at which the evidence concerning the best interests of the child was competing for time with the evidence related to divorce or property issues, which were important in their own right. In his opposition to the motion to alter or amend the judgment, Mr. Monju argued that Ms. Mukete suffered no prejudice from the court’s decisions. Mr. Monju asserted that Ms. Mukete received “approximately 90 minutes” to present her case and argued that she had “plenty of opportunity” to present evidence on all issues. Mr. Monju argued that any deficiencies in the evidence resulted from lack of preparation by Ms. Mukete
and her counsel, not from the time limitations imposed by the court.
Mr. Monju’s argument is unconvincing. This argument fails to acknowledge the actual time limitations. The instructions to finish presenting evidence by 4:00 p.m. left Ms. Mukete with approximately 90 minutes for her cross-examination of Mr. Monju and her entire case-in-chief. During that 90-minute period, the court took a 30-minute recess, telling counsel to “continue to talk” about settling the case. Afterwards, Ms. Mukete had slightly more than 60 minutes to present evidence on all of her claims. Although it is apparent that a failure of preparation hindered Ms. Mukete’s case, there is no serious question that the court-imposed time constraints exacerbated that failure. It would be unreasonable to expect even the most diligently prepared counsel to fairly and adequately address all issues within those time limitations.
In this case, the circuit court abused its discretion when it refused to consider granting a continuance and insisted that the parties present evidence on all issues within an unreasonably restricted time. We vacate the judgment to the extent that it includes the child custody determination and remand the case for the circuit court “to reassess the best interests of the child[] after a full presentation of evidence” relevant to that determination. A.A. v. Ab.D., 246 Md. App. at 449. Because the time limitations affected not only the custody determination but also affected the evaluation of other issues in the case, we vacate the judgment as to all claims except divorce and remand the case for a new trial on all issues other than divorce.
CONCLUSION
As explained in this opinion, we have concluded that the circuit court abused its discretion in its evaluation of the claims for division of marital property and monetary award. We also have concluded that Ms. Mukete is entitled to a new trial because the court refused to consider granting a continuance and unreasonably restricted the presentation of evidence on all issues.
We affirm the judgment on the issue of divorce alone. See Tydings & Rosenberg, LLP v. Zorzit, 422 Md. 582, 596 (2011). We vacate the final judgment as to all other issues in the case, including the division of marital property, monetary award, transfer of an ownership interest in property, alimony, child custody, child support, and counsel fees. Until the court conducts a new trial and issues a new judgment, the prior orders for child custody and payments of a monetary award will have the force and effect of pendente lite orders. See St. Cyr v. St. Cyr, 228 Md. App. at 198 (citing Simonds v. Simonds, 165 Md. App. 591, 613 (2005)).
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED IN PART AND VACATED IN PART. PROVISION IN JUDGMENT GRANTING THE PARTIES AN ABSOLUTE DIVORCE AFFIRMED; OTHER PROVISIONS IN THE JUDGMENT VACATED AS “FINAL”; MONETARY AWARD PAYMENT PROVISION CONVERTED TO PENDENTE LITE ORDER; CUSTODY ORDER CONVERTED TO PENDENTE LITE ORDER. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 Ms. Mukete later testified that she “had to pay a nanny to come pick [the child] up.” The record does not include information about when this care provider picked up the child.
2 Counsel for Mr. Monju marked the video exhibits for identification and played the recordings in the courtroom, but never offered the exhibits into evidence. In her testimony, Ms. Mukete admitted that one recording showed her “struggling with” Mr. Monju, but she claimed that she was not slapping him.
4 Although the emergency motion asserted that Mr. Monju faced criminal charges for child neglect, the incident report does not mention any charges. The report indicates that the officer made an “Arrest” and issued a “Criminal Citation / Summons.” A search of Judiciary records shows that the officers did not pursue criminal charges after the incident. Three weeks after the incident, Ms. Mukete herself applied for criminal charges in district court, alleging that Mr. Monju committed child neglect. In her application, she acknowledged that “criminal charges ha[d] not been filed” after the incident.
5 The record does not include a transcript of the hearing concerning the emergency motion.
6 A prior order of this Court states that Ms. Mukete did not file her motion to alter or amend the judgment within 10 days after the entry of judgment and, accordingly, that the scope of review is limited to reviewing the denial of her motion. See generally Blake v. Blake, 341 Md. 326, 331, 338 (1996). This prior order was incorrect. The circuit court entered the divorce judgment on June 26, 2024. The tenth day after the entry of judgment was Saturday, July 6, 2024. Where the last day of a filing period ends on a Saturday, the filing period “runs until the end of the next day that is not a Saturday, Sunday, or holiday[.]” Md. Rule 1-203(a)(1). Ms. Mukete filed her motion to alter or amend the judgment on Monday, July 8, 2024. Because she filed a timely motion to alter or amend the judgment and appealed within 30 days after the denial of that motion, her appeal from the judgment is timely under Md. Rule 8-202(c).
7 Ms. Mukete’s informal brief presents the following questions:
1. Was the trial court’s award of the Matrimonial Home to the Appellee equitable?
. . . Was the court order that the Appellee pay $10.000 ($500) each month over the next twenty months or as he believes
appropriate equitable?
2. Was the trial court award of Primary Physical custody and tie- breaking authority of the . . . 3 yrs. old Autistic child to the Appellee of the Child’s Best Interest following, A) The testimony of the Appellant B) The Newly introduced medical records and Police Report in the Post trial motion?
[3.] Was the trial court finding of the Appellant’s testimony as incredible clearly erroneous?
. . . Was the finding of incredibility based on any contradicting evidence presented or . . . mere speculations? Especially following the newly introduced medical and educational . . . evaluation Records of the 3 yrs. old child at the post -trial motion re-confirming the . . . Appellant’s testimony on trial about the autistic diagnosis?
[4.] Were the trial court findings supported by the weight of the evidence?
. . . Did the Appellee testimony outweigh the combination of Appellant’s testimony? . . . leading the judge to find in favor of the Appellee?
[5.] Did the Appellant have a fair trial?
8 In addition, Rule 9-207(d) authorizes the court, after a hearing, to require a party to pay costs and attorney’s fees caused by noncompliance.
9 In a contempt petition filed a few weeks after the divorce, counsel for Mr. Monju wrote that Ms. Mukete “appears to have been living in her vehicle, as [Mr. Monju] has observed [Ms. Mukete] park her vehicle in close proximity to the former [m] arital [h]ome, and sleep in that vehicle.” In her reply brief to this Court, Ms. Mukete wrote that she “moved into a shelter” sometime after the divorce.
10 In divorce and custody cases such as this one, one of the most basic facts to consider is the age of each party. Here, the parties did not even mention their ages. The parties introduced into evidence a copy of the final protective orders, which include certain identifying information. According to that information, Mr. Monju was 61 years old, and Ms. Mukete was 40 years old on the trial date.
11 See generally Azizova v. Suleymanov, 243 Md. App. 340, 345-46 (2019) (discussing Montgomery County Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406 (1977), and Taylor v. Taylor, 306 Md. 290 (1986)).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 50 (2024)
Reconsideration; magistrate; order
Jose D. Martinez Lazo v.
Dicsi E. Bonilla Mendez
No. 1605, September Term 2022
Argued before: Kehoe, Tang, Zic
Opinion by: Kehoe, J
Filed: Mar. 13, 2025
The Appellate Court remanded the appeal to the Prince George’s County Circuit Court to consider husband’s motion for reconsideration. Although the magistrate filed a memorandum “hereby denying” husband’s motion, a judge never signed or issued an actual order denying the motion.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
virtual hearing. The notice also provided a number to call if a participant could not log into the Zoom call. After the divorce hearing before the magistrate,1 at which Lazo was not present, the magistrate recommended, in the form of a proposed order for judgment of absolute divorce, that Mendez be granted an absolute divorce and sole legal and primary physical custody of the minor child. The magistrate also recommended that Lazo be ordered to pay $1,162.00 per month in child support to Mendez. The Magistrate’s written Report and Recommendations was mailed to Lazo on July 25th and filed with the clerk on August 9, 2022. It advised the parties that “if written exceptions are not filed on or before August 8,” the proposed order would be submitted to the court for approval. However, Lazo did not file exceptions to the Report and Recommendations.
The appeal before this Court results from the denial of Appellant’s motion for reconsideration of the magistrate’s decision granting Appellee’s complaint for divorce, custody, and child support, after a virtual divorce hearing in Appellant’s absence. Appellant presents the following question for this Court’s review:
Did the circuit court abuse its discretion when it denied the appellant’s motion for reconsideration?
BACKGROUND
Appellee, Dicsi E. Bonilla Mendez (“Mendez”), filed a complaint for divorce against the Appellant, Jose D. Martinez Lazo (“Lazo”), on March 11, 2022. In the complaint, Mendez also sought primary physical and sole legal custody of their minor daughter, as well as child support from Lazo. On May 9, 2022, Mendez filed a request for order of default against Lazo for his failure to respond to the complaint for divorce and custody, which was granted. The court issued an Order of Default on June 14, 2022 which advised Lazo of his “right to move to vacate this Default” within thirty days of the order. A separate Notice of Default Order further advised Lazo of his right to move to vacate the Order of Default within thirty days of its entry and explained that any such motion “shall state the reasons for the failure to plead and the [l]egal and [f]actual basis for the [d] efense to the claim.” However, Lazo did not move to vacate the entry of default.
A virtual hearing for uncontested divorce was scheduled for July 25, 2022 before a magistrate, and notice was sent to the parties with instructions on how to participate in the
On August 23, 2022, Lazo filed a motion for reconsideration of the “magistrate’s decision” under “Md. Rule 2-311” and requested a hearing, alleging that he was unable to connect to the virtual hearing on July 25th with the instructions provided to him.2 Lazo’s motion for reconsideration specifically stated:
I am requesting that Magistrate’s decision be reconsidered and a hearing be scheduled. A hearing (virtual) was scheduled for July 25, 2022 and I wasn’t able to connect to the hearing with the access information I received. On August 2, 2022, I filed an Answer and Countercomplaint for Absolute Divorce and would greatly appreciate an opportunity to put forth my case with regards to custody and child support obligation. I attach here proof of Income and proof of my court-ordered child support obligation for another child.
Although Lazo’s proposed counterclaim sought an absolute divorce on the grounds of mutual separation and desertion, he does not contest the granting of the absolute divorce in his appeal.
In a Memorandum to File dated September 20, 2022, the magistrate wrote:
This case came before the Family Magistrate on July 25, 2022, for a remote hearing on the Plaintiff’s Complaint for Absolute Divorce filed March 11, 2022. The Plaintiff was present. The Defendant was not present. The Family Magistrate made findings and recommendations. On August 23, 2022, the Defendant filed a Motion for Reconsideration. The Magistrate is hereby denying that Motion.
This Memorandum was filed by the clerk on September 22, 2022, however, a judge never signed an order to this effect.
On August 23, 2022, the same day Lazo filed the motion for reconsideration, the court executed the proposed order of judgment of absolute divorce. The order of judgment of
absolute divorce was entered on October 13, 2022, and Lazo filed a notice of appeal on November 11, 2023. The notice of appeal was docketed on November 15, 2022.
STANDARD OF REVIEW
Generally, the ruling on a motion for reconsideration is discretionary, and thus the standard of review is for abuse of discretion. Wilson-X v. Dep’t of Hum. Res., 403 Md. 667, 674-75 (2008). However, “a failure to consider the proper legal standard in reaching a decision constitutes an abuse of discretion.” Id. at 675 (quoting Pasteur v. Skevofilax, 396 Md. 405, 433 (2007). It is the decision to grant or deny the motion for reconsideration that is under review for abuse of discretion, rather than review of the merits of the judgment sought to be reconsidered. In re Adoption/Guardianship No. 93321055/CAD, 344 Md. 458, 47576 (1997).
DISCUSSION
Lazo argues on appeal that his inability to connect to the virtual divorce hearing with the information provided by the court is an irregularity as contemplated under Rule 2- 535(b) and, therefore, a new hearing on the merits should be ordered. Rule 2-535(b) on the revisory powers of the circuit court states, “[o] n motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.” Md. Rule 2-535(b). An irregularity is defined as “the doing or not doing of that, in the conduct of a suit at law, which, conformable to the practice of the court, ought or ought not to be done,” such as “a nonconformity of process or procedure.” Pelletier v. Burson, 213 Md. App. 284, 290 (2012) (quoting Davis v. Attorney General, 187 Md. App. 110, 123–24 (2009)). Examples of irregularities include “failures to send notice of a default judgment, to send notice of an order dismissing an action, to mail a notice to the proper address, and to provide for required publication.” Thacker v. Hale, 146 Md. App. 203, 219-20 (2002).
A motion filed pursuant to Rule 2-535(b) depends on the entry of a judgment. In this case, at the time Lazo filed his motion, there was no judgment as the order for absolute divorce had not yet been entered by the court. The motion was filed pursuant to Rule 2-311. In any event, it was incumbent on a judge in the trial court to have disposed of Lazo’s motion to reconsider. Accordingly, we address, sua sponte, the magistrate’s exercise of putative authority to deny Lazo’s motion for reconsideration. The magistrate did not make any findings of fact or present a recommendation to a judge to consider as required by Rule 9-208(e). Lazo filed his motion for reconsideration on August 23, 2022, and on September 22, 2022, the magistrate filed a memorandum “hereby denying” Lazo’s motion, but an actual order denying the motion, signed by a judge, is absent from the case file.
The magistrate’s authority in family law matters is derived from Maryland Rule 9-208. In family law cases, the magistrate has “the power to regulate all proceedings in the hearing,” including:
(1) direct the issuance of a subpoena to compel the
attendance of witnesses and the production of documents or other tangible things;
(2) administer oaths to witnesses;
(3) rule on the admissibility of evidence;
(4) examine witnesses;
(5) convene, continue, and adjourn the hearing, as required;
(6) recommend contempt proceedings or other sanctions to the court; and
(7) recommend findings of fact and conclusions of law.
Md. Rule 9-208(b). Following a decision, “the magistrate shall prepare written recommendations, which shall include a brief statement of the magistrate’s findings and shall be accompanied by a proposed order.” Md. Rule 9-208(e)(1).
A magistrate’s recommendations and proposed order are then reviewed by a judge who “may direct entry of the order or judgment or take other appropriate action.” Md. Rule 9-208(i)(2). The court will consider a magistrate’s findings of facts as “prima facie correct” and will not disturb those findings unless they are “clearly erroneous, i.e. unsupported by substantial evidence.”
O’Brien v. O’Brien, 367 Md. 547, 554 (2002). However, “[t]he [magistrate’s] report is advisory only… [and] the [magistrate’s] ultimate conclusions are merely recommendatory and must be reviewed by the court ‘with an independent exercise of judgment.’” Id. at 554–55 (quoting Harryman v. State, 359 Md. 492, 507 (2000)). A magistrate is not a “judicial officer” and does not have “judicial powers,” but is rather an “assistant and advisor to the court.” Id. at 554.
Here, it appears from the case file that a judge of the Circuit Court for Prince George’s County never reviewed the magistrate’s recommendation, as expressed in the memorandum filed on September 22, 2022, denying Lazo’s motion for reconsideration. Ruling on motions is not a power explicitly conferred to a magistrate under Rule 9-208. Md. Rule 9-208(b). As such, a judge must review the magistrate’s recommendation on the motion and then issue an order either granting or denying the motion. An order, signed by a judge, ruling on Lazo’s motion for reconsideration is absent from the case file. To date, the circuit court has yet to rule on Lazo’s motion or issue an order.
A similar issue occurred in O’Brien v. O’Brien, where the circuit court never entered an order on the matter appealed. O’Brien, 367 Md. at 551–56. In that case, the adult sister filed for, inter alia, arrearages in child support for the care of her minor sister against their father. Id. at 551. The magistrate recommended a finding in favor of the adult daughter and the father filed exceptions to the magistrate’s recommendation. Id. at 552. After a hearing, the judge agreed with the father and entered an order declaring “that the exceptions filed by [the father] are hereby sustained, without prejudice.” Id. at 553. The adult daughter appealed the judge’s decision to this Court.3 However, “[n]o order denying or dismissing [the adult sister’s] motion for relief–has ever been filed.” Id. For that reason, our Supreme Court held that there was no final appealable judgment to review. Id. at 547.
“[A] party may appeal from a final judgment entered in a civil or criminal case by a circuit court.” Md. Code Ann., Cts. & Jud. Proc. § 12-301. For a judgment to be final, it must be “an unqualified, final disposition of the matter in controversy.”
O’Brien, 367 Md. at 554 (quoting Davis v. Davis, 335 Md. 699, 711 (1994)). Our Supreme Court in O’Brien declared that the trial court:
[M]ust rule upon the exceptions, either by sustaining or overruling them, and it must then enter an appropriate order consistent with that ruling. In this instance, where the court sustained the exceptions, the next required, and final, step would have been an order denying [adult sister’s] motion for relief. That would have terminated the case… It is not over until a judgment… is signed and entered on the docket. As that has yet to occur, [adult sister’s] appeal was plainly premature and it should have been dismissed by the Court of Special Appeals.
Id. at 555–56 (emphasis in original). By dismissing the appeal, the case would return to the circuit court to either “reconsider the ruling on the exceptions or enter a judgment on that ruling.” Id. at 556. The adult sister would then be free to appeal the final judgment once entered, if she desired. Id.
Likewise, in the case before us, the magistrate filed a memorandum “hereby denying” Lazo’s motion in question, however, the judge never signed or issued an actual order denying the motion. To be sure, the magistrate has no authority to grant or deny a motion. That authority rests solely with a judge. Although there is a final judgment in this matter, the instant appeal deals with a motion that was never addressed by the trial court.
We do not presuppose any objections or defenses that
Mendez may raise to Lazo’s motion. The remaining issues raised by Lazo all relate to custody, access, and child support. Should the trial court determine that a new hearing is appropriate, then it must be mindful of this Court’s discussion of orders of default in Flynn v. May, 157 Md. App. 389 (2004). Judge Charles E. Moylan, Jr. pointed out that the entry of a judgment by default is discretionary, not mandatory, when a party fails to file a timely responsive pleading. Id. at 403. In a custody action, a default judgment cannot be a substitute for the trial court’s determination of the best interest of the child after a full evidentiary hearing. Id. at 407. In this case, a judge of the circuit court must consider the merits of Lazo’s motion in light of the holding in Flynn v. May.
We make this note on the allocation of costs in this case. Rule 8-607(a) sets a default rule of awarding costs to the prevailing party. The court can order otherwise. Id. We note for the record that Mendez had been represented on a pro bono basis. It would be inequitable to impose costs Mendez in this matter. Therefore, we will waive the costs in this matter.
CONCLUSION
For the reasons supra, we remand the case to the Circuit Court for Prince George’s County to address Lazo’s motion for reconsideration. We recommend that the circuit court
address the motion for reconsideration, either by conducting a hearing on the motion or by entering a ruling on the motion.4
CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The transcript of this hearing is not contained in the record.
2 Lazo also filed an answer to the complaint for absolute divorce against him and a counter- complaint for absolute divorce against Mendez on August 2, 2022.
3 See O’Brien v. O’Brien, 136 Md. App. 497 (2001), rev’d and rem’d 367 Md. 547 (2002).
4 We note that should Lazo appeal again, transcripts of the proceedings in question would be beneficial for this Court’s review.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s division of marital property, child support and alimony determinations. The court discerns no error, abuse of discretion or other grounds for relief from the divorce judgment.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
v. Meeks, 396 Md. 149, 176 (2006),3 we take judicial notice of Montgomery County Circuit Court Case No. C-15-JV-24-86, decided on March 12, 2024, after the underlying appeal was filed, in which the juvenile court adjudicated M. to be a “child in need of assistance” (“CINA”).4 M. was diagnosed with aplastic anemia, a life-threatening condition for which he remains under medical treatment that has included multiple hospitalizations and a bone marrow transplant. We will summarize the custody determinations of the CINA court that have intersected with this appeal, rendering Father’s challenges to the custody determinations in the underlying divorce case moot. The CINA case remains pending in the juvenile court.
Appellant, L.M. (“Father”),1 appeals from the Judgment of Absolute Divorce entered on January 16, 2024, in the Circuit Court for Montgomery County (the “Divorce Judgment”). Father was married to appellee B.C., (“Mother”), and together they have one son (the “Child” or “M.”), who was nine years old at the time of the divorce.
At the conclusion of a three-day hearing on Father’s complaint for divorce, at which both parties represented themselves,2 the circuit court announced its decisions from the bench. The court then entered a six-page Judgment of Absolute Divorce ordering, among other things, that the parties have joint physical and legal custody of M., with tie-breaking authority granted to Father. The court also ordered the marital home to be sold within 10 months, proceeds of the sale to be divided evenly. The court divided Father’s retirement account and pension plan between the parties, ordering that Father receive 60% percent and Mother receive 40% of each. Finally, the court ordered that Father pay Mother $877.00 per month in child support beginning June 1, 2024.
Father filed the underlying appeal on January 29, 2024.
Also on January 29, 2024, Father requested emergency postdisposition relief from the joint legal custody order in the Divorce Judgment on the ground that M. had recently been hospitalized with a newly discovered life-threatening illness requiring medical care for which Mother was refusing to consent. After Father and Mother failed to appear for a January 30 emergency hearing on Father’s custody petition, the Montgomery County Department of Social Services (the “Department”), on February 9, 2024, requested emergency shelter care for M. for the purpose of authorizing the Department to make medical decisions.
In the interests of M. and the parties, and in order to “reach a just result,” Dashiell
In his brief on appeal, Father challenges most financial aspects of the Divorce Judgment and requests relief from the alimony and child support awards, as well as orders regarding the marital residence and vehicle. He also asks this Court to “[u]phold” decisions by the juvenile court in the CINA case, so that he can “concentrate on caring for the minor child.”5 As an alternative to the rulings contained in the Divorce Judgment, Father proposes that we require the circuit court to order “transfer ownership of the 2020 Mazda CX-5 to [Mother], free of all encumbrances[,]” plus “a lump sum of $25,000 in lieu of any alimony, support or property interests.” With respect to any “marital debts, including all hospital costs, past and future[,]” he asks this Court to rule that he “will not be required to pay back any portion.”
Father presents ten questions (see appendix A), which we have revised, combined, and reordered for clarity as follows:
1. Regarding child custody, did the circuit court err in awarding shared legal custody of M. “without an analysis showing why that would be in the best interests of the minor child,” given that, among other things, Mother failed to demonstrate her ability to transport M. to school or care for M. after school, and given Mother’s subsequent history of withholding consent to medical treatment in life-threatening circumstances resulting in judicial interventions to declare M. to be a CINA?
2. During trial, did the circuit court err or abuse its discretion in questioning Father and “shutting off cross examination[,]” “[in] failing to notice that the case had been sealed upon the motion of [Father] to protect [M.,]” or in not finding that “the reason for the breakdown of the marriage was [Mother’s] actions”?
3. Regarding marital property, did the circuit court err or abuse its discretion in dividing marital
property, in allocating all outstanding marital debts to Father, in not ordering sale of the marital vehicle driven by Mother, in ordering sale of the marital residence, or in allowing Mother to remain in the marital residence without contributing toward the mortgage or expenses?
4. Regarding child support and alimony, did the circuit court err in “in failing to rule that Mother is estopped to claim alimony and child support based on her allegedly broken promise to learn English,” in determining that Mother did not voluntarily impoverish herself, or in awarding Mother alimony and property that “effectively impoverish[ed]” Father “who needs more money in order to care for” M.?
During this appeal, M. has remained a CINA in the Department’s custody, residing with Father under a Trial Home Visit order. This Court does not have jurisdiction over those juvenile proceedings. We hold, therefore, that in light of M.’s illness, medical treatment, and CINA adjudication, that the issues Father raises on appeal concerning the trial court’s custody determinations contained in the Divorce Judgment are now moot. Furthermore, we cannot address Father’s challenges to the trial court’s child support and alimony determinations to the extent that they are based on changes in circumstances occurring subsequent to entry of the underlying Divorce Judgment. Father’s factual allegations concerning changes in circumstances must first be raised in proceedings in the circuit court. See generally Md. Code, § 11-107(b) of the Family Law Article (“FL”) (providing that, subject to exceptions not applicable here, “on the petition of either party, the court may modify the amount of alimony awarded as circumstances and justice require”); FL § 12-104(a) (providing that “[t]he court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change in circumstance”).
In sum, as we explain in our discussion below, we hold that: 1) Father’s challenge to the trial court’s custody determination is moot; 2) Father has not established, on the record before us, that the trial court impermissibly “shut off cross examination” or otherwise erred in granting the divorce on grounds of irreconcilable differences; 3) there was no error or abuse of discretion in the trial court’s division of marital property; and 4) based on the evidence before the circuit court at the time of trial, there was no error or abuse of discretion in the trial court’s child support and alimony determinations.
FACTUAL AND LEGAL BACKGROUND
April 2023 – January 16, 2024: Divorce and Custody Proceedings in Circuit Court
In April 2023, Father filed a complaint seeking divorce; sole custody of M.; imputation of income to Mother based on her “refus[al] to secure any meaningful employment”; and disposition of the marital property, including use and possession of the marital residence in Germantown, where Father, Mother, and M. continued to reside. Mother counterclaimed, seeking shared physical and legal custody, alimony, child support, use
and possession of the marital residence, and a marital award.
During a three-day hearing on January 2-4, 2024, Father and Mother represented themselves. They testified that they met online, while Mother was living outside the United States in her native Colombia, where she was working as a nurse. Before they married, he told Mother that it was important to him to have a child, that she learn English, and that he did not plan for their child or himself to participate in religious activities. Father testified that his first marriage ended in divorce after he discovered his wife’s infertility. Based on “promises” regarding those issues, Father incurred $40,000 in debt “to get her” to the United States.
Two years after their November 19, 2010, wedding in Colombia, when Father obtained a “green card” for her, Mother moved to Maryland. M. was born on April 29, 2015. At the time of the hearing, M. had no health issues and had “never been in the hospital, [or] had a serious illness.”
In 2016, the family moved to a townhouse in Germantown. Father testified that he continued to encourage Mother to learn English. He enrolled her in several English courses and purchased a desktop and a car so she could “drive . . . to school to take English lessons.” In 2018, he financed the purchase of a Volkswagen with money from his retirement account, then traded that car in 2020, for a Mazda CX-5 with safety features because Mother was “still learning to drive.” At the time of trial there was still a $5,000 note on the Mazda. Father drove his Saab, which he paid off before the marriage.
Father, age 60, works from home for a “financial industry regulatory authority,” which allows him to take M. to school and pick him up. Given Mother’s language barrier, Father testified that he helps M. with schoolwork, takes him to doctor appointments, and handles family finances. Father testified that he was “exclusively paying all bills and working with no help” and had trouble keeping payments current. He takes M. to the park and on other community and educational outings.
Father complained about Mother’s failure to learn English and “refusal to work until three months ago[,]” as well as her devotion of time and interest to religious activities, including her Spanish-speaking church and YouTube videos. Father also alleged that some of Mother’s behavior toward M. was “abus[ive.]” Although Father called police three times, and was advised to file for a protective order, Father did not “want that being discovered” in order “to protect [his] son.” For that reason, he also asked for the record to be sealed when he filed this case.
Mother testified that about three months earlier, she began working as a teacher’s assistant at a private school where she previously worked from 2021 to 2022, but had left “to spend more time with” M. “because [she] was spending too much time outside the home.” At work, Mother was able to “understand the instructions and simple sentences” in English. She was certified as a teacher’s assistant and “studying to become a teacher for . . . young children from zero to 5 years old.” She began paying Father $1,000 a month toward household expenses in September 2024.
She testified that her church provides her with fellowship, support, and activities, including a dance group. She views that community as her “second family.”
Mother complained that Father told her pastor “that he wanted his wife to be submissive” but Mother believed that “what he wanted was just a slave.” According to Mother, “he has diminished” her, telling her “all the time” that she is “good for nothing,” that she doesn’t “know anything” or “know English.”
As the marriage deteriorated, Mother and Father began living separate lives. Although they remained in the same residence, they had occupied separate bedrooms for at least one year before the hearing. The circuit court issued a bench ruling, followed by entry of the Divorce Judgment:
• Granting the parties’ divorce “on the basis of irreconcilable differences”;
• Awarding joint legal and physical custody of M. on a specified schedule;
• Authorizing ten minutes of daily contact with the non-custodial parent “if the minor child so chooses”;
• Ordering sale of the marital residence within 10 months, and 50-50 division of any net sale proceeds;
• Requiring Father pay Mother, beginning June 1, 2024, monthly rehabilitative alimony of $500 “for six (6) years”;
• Requiring Father pay Mother, beginning June 1, 2024, monthly child support of $877;
• Requiring Father transfer title to the vehicle acquired during the marriage to Mother, after “paying an existing lien on the vehicle with funds from [his] 401(k) retirement account”;
• Dividing Father’s remaining retirement account and “any fixed pension [he] may be entitled to from his employer,” with 60% to Father, and 40% to Mother; and
• Requiring Father to “provide health insurance for the minor child” and for a one- year period from the date of the Order, for Mother.
6 January 21-30, 2024: Notice of Appeal and Post-Divorce Proceedings Precipitated by M.’s Medical Crisis
On January 26, 2024, Father filed an “Emergency Motion to Transfer Decision- Making Authority to” him, on the ground that “since the 21st of January 2024, the minor child has been admitted into Johns Hopkins University Hospital, in Baltimore, with a life- threatening condition.” In support, Father averred: 4. According to the doctors, the minor child has suffered a catastrophic failure of his entire immune system and could potentially succumb to any infection, because his body has no means of fighting such infection. The longer the wait, the higher the changes of him getting such an infection.
5. At least six doctors have approached the parties to obtain consent to do a genetic testing to isolate the potential cause and commence appropriate treatment.
6. [Mother], through an interpreter, has refused to give such consent, citing her religious convictions and the power of God.
7. [Father] has given the required consent. . . .
10. [Father] desires that [Mother] be temporarily removed as a decision- maker, especially for medical decisions and the attending physicians have given permission to undertake medical treatment only with the consent of [Father].
Meanwhile, Father filed his notice of appeal in this divorce case on January 29, 2024. The circuit court scheduled a hearing for Father’s emergency petition for January 30. Because “[a]ll parties failed to appear” for that hearing, however, the court dismissed Father’s emergency petition.
February 9 – March 12, 2024: Shelter Care and CINA Proceedings
On February 12, the Department filed a petition seeking shelter care for M. in the Circuit Court for Montgomery County Case No. C-15-JV-2-86 (the “CINA case”), identifying its reason for requesting authority to consent to medical care for him as “Medical NG – Biological Parents.” In that petition and a verified CINA petition filed just hours later, the Department explained that neither Mother nor Father had consented to emergent medical treatment necessary to diagnose and treat M. for a lifethreatening failure of his immune system caused by suspected leukemia or aplastic anemia. The Department reported that M. had been hospitalized at The Johns Hopkins Hospital (“JHH”) since January 21, 2024; that “medical neglect” by both parents put him “at imminent risk of harm.” In the petition, the Department explained that,
On January 21, 2024, the parents brought [M.] to Adventist HealthCare Shady Grove Medical Center for the third time that month. He continued to experience symptoms . . ., but also appeared jaundiced, with scattered bruising on his extremities. [M.] was weak and lethargic. His lips were swollen, and he complained of abdominal pain. He had been vomiting for a week, per the parents’ report. Adventist staff arranged for [M.] to be transported by ambulance to The Johns Hopkins Hospital (JHH). JHH staff echoed [Children’s National Medical Center’s] previous recommendation for a bone marrow biopsy, to rule out leukemia and confirm the suspected diagnosis of aplastic anemia. The parents eventually gave their consent.
On February 9, 2024, Mother failed to appear for a previously scheduled treatment meeting with JHH. Doctors were unable to reach her by phone. Father, in recent conversations with JHH physicians and staff, reported that Mother was “the problem.” JHH staff informed both parents that [M.] may die if he does not receive treatment within the next few weeks.
On February 9, 2024, Ms. Joppy attempted an unannounced home visit in an effort to speak with
Mother about treatment options, without success. The Department issued a shelter authorization.
The Department asserted that M.’s condition required constant medical monitoring and care:
Currently, [M.] receives blood products almost daily. He is unable to independently maintain his red blood cell and platelet counts. He also has herpes simplex virus (HSV) which causes significant swelling and sores on his sores and in his mouth. This causes great pain and oozing. He is unable to eat or drink much on his own. He continues to have high fevers each day and is not receiving fever-reducing/pain-reducing medication regularly, per his Mother’s direction. [M.] receives antibiotics, antifungal, and antiviral medications via intravenous therapy (IV).
At the hearing on February 13, 2024, during which the court heard from both Mother and Father, the court found that it was in M.’s best interest for the Department and its designee to be appointed as his limited guardian for decision-making purposes “in the event that the Child’s Mother and Father are not available, are unable to reach an agreement, and/or are unwilling to consent.” In its Order Granting Limited Guardianship of a Juvenile for Decision-Making Purposes, entered the same day, the juvenile court appointed “Lisa Merkin, Director of Child Welfare Services,” the Limited Guardian for M., with authority, “in the event the Child’s Mother and Father are not available, are unable to reach an agreement, and/or are unwilling to consent[,]” authority to make “ALL CARETAKING DECISIONS, after consultations with the Child’s parents,” including decisions regarding M.’s education and medical needs, travel and hospitalization, and psychotropic medication and mental health treatment needs.
On March 3, 2024, following a hearing on an amended CINA petition, the juvenile court sustained the allegations in the Department’s petition, determined that M. is a CINA, and committed him “to DHHS/Child Welfare Services, under the jurisdiction of the Juvenile Court under an Order of Protective Supervision in the care and custody of his [Father].” Father became “the sole medical decisionmaker, so long as [he] follows the recommendations of medical professionals[.]” Otherwise, Limited Guardianship was
“granted to Lisa Merkin, Director of Child Welfare Services, . . . for medical decisions including authorization for treatment, emergency surgery, medical testing, medications including pain management, and immunosuppressive therapy[.]”
March – May 2024: Divorce Proceedings Pending Appeal
On March 25, 2024, Father asked the circuit court for emergency relief prohibiting transfer of his retirement account assets. On April 25, the court, explaining that there was no qualified domestic relations order (“QDRO”) pertaining to those accounts, denied relief.
On May 20, 2024, Father filed his brief in this appeal, challenging multiple aspects of the Divorce Judgment based largely on the alleged material changes precipitated by M.’s
health crises. Mother has not filed a brief or otherwise appeared in this Court.
June – July 2024: Juvenile Court Proceedings During M.’s Ongoing Medical Treatment
In a July 2, 2024 report filed in the juvenile court before a CINA review hearing, the Department advised that M. “continues to reside with his father under an Order of Protective Supervision.” According to the Department, when both parents initially “expressed interest in discharging [M.] from Children’s National Medical Center (CNMC) against medical advice[,]” staff had to convince them that additional testing was required to verify his diagnosis. After a bone marrow biopsy confirmed aplastic anemia, M.’s Hematology team at JHH recommended a bone marrow transplant as the best treatment course because “it has a very high success rate,” in contrast to immunosuppressive therapy (IST) which consists of medications designed to stimulate “the body to start making blood cells on its own” and has “about a 70% success rate and is much longer treatment course” requiring him to return two to three times every “week for many months to receive treatment, monitoring, and blood product transfusions.” Although both parents initially “appeared . . . on board with IST treatment[,]” they later “stated that they were overwhelmed with the volume of information provided by medical professionals.” recommended behavioral health services to help M. develop coping skills, but Father refused those services.
The Department reported that after M. was declared a CINA on March 12, 2024, he had “been hospitalized three” more times, “for bacterial infection, a complication of” his aplastic anemia. Moreover, despite “intensive” IST over “the past four months[,]” M. was not “responding” and needed a bone marrow transplant. At that time, he was receiving transfusions of red blood cells, platelets, and medications three times each week.
Father initially “was not on board with BMT[.]” Father could not be a donor because of his age, and Mother “refused to be a donor” or “provide information for a sibling that resides out of the country.” In its report to the juvenile court, the Department requested continuation of the CINA proceedings in light of the parents’ history of not giving timely consent to medical treatment and because a BMT would be “a curative life saving measure[.]” Father had “been very diligent in ensuing that [M.] attends all medical appointments and that he takes all medications as prescribed,” establishing “a good protocol for administering them” and keeping them “in a locked box to prevent [Mother] from throwing them out as she has done previously.” Father had “completed his psychological evaluation” and “generally followed all of [the] recommendations for [M.’s] medical treatment, until the discussion of BMT.”
The Department reported that “the mother has continued to reside in the family home with supervision.” Both Father and the Department expressed “concerns regarding [Mother’s] ability to care for and be unsupervised with” M. Indeed on June 27, 2024, after [M.] disclosed recent instances of physical abuse by [Mother], Father obtained a temporary protective order on July 1, 2024, on behalf of [M.]. The temporary protective order was granted and Mother was ordered to vacate the home. At the conclusion of a CINA review hearing on July 31,
2024, the juvenile court issued an order entered August 1, 2024, continuing M.’s CINA case and giving the Department custody for placement “in a Temporary Living Arrangement at Johns Hopkins Hospital, where he ha[d] been since July 11[.]”
Citing his “medical fragility, and the upcoming bone marrow treatment,” the juvenile court concluded that “it is necessary and appropriate for him to remain there for the time being.”
The court “reaffirmed” the “Limited Guardianship Order dated July 8, 2024” and required Father to “follow all treatment recommendations from M.’s] psychological” and other “treatment providers[.]” Mother was allowed supervised weekly in-person visitation “for a minimum of one hour with a goal of extending the one hour when [M.] is able” and supervised virtual visitation at least three times a week.
August – November 2024: Bone Marrow Transplant and Placement With Father
After M. received a bone marrow transplant on August 28, 2024, he was hospitalized for more than four weeks. The juvenile court, by a “Consent Change of Placement Order” entered September 24, 2024, recommitted M. to the Department, but specified “placement with his Father . . . under a Trial Home Visit” with additional conditions, including that they must “reside within thirty (30) minutes of John[s] Hopkins Hospital, until John[s] Hopkins providers clear [M.] to return to his home[.]” M. “was approved for discharge on October 2, 2024.” For the ensuing 60 days, he was required to return to the clinic two to three times each week.
As a result of the ongoing medical care at JHH and in accordance with the juvenile court’s geographic restriction in its September 23 order, Father and M. temporarily resided in a hotel. During this period, Mother “returned to the family home” because “the person she was residing with had family come for the holiday and there was no room for her” and “no other place to go.” “Neither parent reported this to the Department[.]”
December 2024 – January 2025: Change in Residence and CINA Review
On December 4, 2024, the Department petitioned to amend the placement terms in the juvenile court’s July and September orders by enlarging the geographic restriction to 50 miles because M. “has been medically stable following this procedure,” and his “JHH providers have since cleared him to return to his family home effective December 5, 2024[,]” subject to returning to residing “within a 30-minute radius if JHH requires.”
The magistrate reported that in a remote zoom meeting on December 4, 2024, “[a]ll parties agreed to changes to the Court’s order” to allow M.’s placement to remain with Father, under the “Trial Home Visit . . . granted on September 23, 2024[,]” with an expansion of the residential radius from 30 to 50 miles. The magistrate recommended continuing CINA jurisdiction with commitment to the Department.
On January 2, 2025, the Department filed its report to the juvenile court, which was prepared on December 19, 2024, in preparation for a CINA review hearing scheduled for January 15, 2025. The Department reported that Father and M. were residing at the Germantown residence, and that Mother “vacate[d] the home prior to [M.] returning” and was living in
Gaithersburg. The Department recommended that pending another “3 month review hearing[,]” M. continue to be a CINA in the Department’s custody, residing with Father under the Trial Home Visit order limiting travel to within 50 miles of JHH; that Father “shall be the sole medical decision maker, so long as [he] follows the recommendations of medical professions, under the direction of the Department”; and that Mother “continue to have no unsupervised contact[,]” weekly supervised visits, “liberal” virtual contact “loosely supervised by” Father. The Department also recommended that “Limited Guardianship for Medical and Educational purposes” be continued for “the Director of Child Welfare Services, . . . for medical decisions” in case Father “does not agree to the medical recommendation of medical professionals” or “sign all releases for treatment providers[.]”
At the CINA review hearing on January 15, 2025, the juvenile court appears to have generally accepted the Department’s recommendations. The court continued M.’s CINA status, and set a permanency planning review hearing for April 22, 2025.
DISCUSSION
Father, continuing to represent himself as he has throughout this litigation, contends that the circuit court erred or abused its discretion in its rulings on custody; grounds for divorce; division of marital property and marital debts; and in its child support and alimony determinations. In light of the CINA proceeding, we conclude that Father’s custody challenge is moot. With respect to his remaining questions, we discern no error, abuse of discretion, or other grounds for relief from the Divorce Judgment. To the extent there may be grounds for modifying alimony, child support, or rights regarding the marital residence, health insurance, health-related debts, and other financial issues affected by M.’s health crises, those matters must be first addressed to the circuit court.
Standards Governing Review
Under Md. Rule 8-131(c), [w]hen an action has been tried without a jury, an appellate court will review the case on both the law and the evidence. It 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.
Generally, we review the circuit court’s determinations regarding divorce, custody, child support, and disposition of marital property issues for error of law in applying legal standards, for clear error in factual findings, and for abuse of discretion in the ultimate awards. See Velasquez v. Fuentes, 262 Md. App. 215, 227-28 (2024); Malin v. Mininberg, 153 Md. App. 358, 414-15 (2003). Orders involving an interpretation of Maryland statutory law are reviewed de novo. See Reichert v. Hornbeck, 210 Md. App. 282, 316 (2013) (citation omitted). Factual findings underlying a circuit court’s decision, whether on alimony, child support, custody, or marital property, are not clearly erroneous if supported by competent and substantial evidence. See St. Cyr v. St. Cyr, 228 Md. App. 163, 180 (2016); Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000). A ruling is an abuse of discretion only when no reasonable person would take the view adopted by the [trial] court, or
when the court acts without reference to any guiding rules or principles. It has also been said to exist when the ruling under consideration appears tohave been made on untenable grounds, when the ruling is clearly against the logic and effect of facts and inferences before the court, when the ruling is clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result, when the ruling is violative of fact and logic, or when it constitutes an untenable judicial act that defies reason and works an injustice.
Velasquez, 262 Md. App. at 227-28 (cleaned up).
I. Legal Custody
Citing M.’s CINA adjudication, Mother’s failure to consent to medical treatment, and her restricted access to M., Father argues that the circuit court erred and abused its discretion in ordering shared legal custody. As noted above, Father’s custody challenge to the Divorce Judgment is moot. As we have detailed, after being sheltered during a medical emergency, M. was declared a CINA on March 12, 2024, based on sustained findings that his parents’ failure to timely consent to medical care warranted Department intervention. Although M. initially remained in Father’s custody subject to an Order of Protective Supervision, the juvenile court placed M. into the Department’s custody last summer, while he was hospitalized pending a bone marrow transplant. In proceedings on December 4, 2024, just eight days before this appeal was submitted on the brief, M. remained in the Department’s custody, subject to (i) his placement with Father in a residence within 50 miles of The Johns Hopkins Hospital, where he continues to receive medical care, and (ii) continuing restrictions on Mother’s visitation, limited to Department-approved and - supervised contact. The juvenile court, on January 15, 2025, ordered M. continue under the foregoing permanency plan, and set a review hearing for April 2025.
Because an appeal from a custody order becomes moot when the court issues a subsequent custody order, the CINA orders foreclose Father’s challenge to the shared custody provision in the Divorce Judgment. See Cabrera v. Mercado, 230 Md. App. 37, 85-87 (2016). This Court cannot provide an effective remedy in this case because even if we were to vacate the custody order in the Divorce Judgment, the superseding CINA custody orders would still govern. See id. Consequently, we will not address Father’s arguments regarding custody of M.
II. Trial Proceedings: Cross-Examination, Grounds for Divorce, and Order to Seal Father contends that the trial court erred in cross-examining him, in determining that irreconcilable differences are the grounds for this divorce, and in disregarding an order sealing information about M. We are not persuaded that the circuit court erred or abused its discretion in these matters.
Cross-Examination Challenge
First, in his brief, Father asks [w]hether the trial judge erred in repeatedly interrupting the proceedings in the process debating and arguing with the appellant, shutting off cross examination, and asking that
January 4 hearing page 21, line 20, thereby throwing the whole issue into confusion.
The cited transcript does not support Father’s challenge. To the contrary, that page sets forth the circuit court’s evaluation of the statutory factors that must be considered in determining alimony. See FL § 11-106(b). More specifically, the line that Father points to is the single word “employment” at the end of the following statement by the court: “I don’t know how she’s going to finance anything, but she seems rather resourceful, and I think she will do what she needs to do to better herself, get better employment.”
Given the cross-examination context described by Father, we reviewed page 21 of the other two transcripts, but found nothing pertinent. The January 2 transcript is a colloquy between the court and Father regarding what the issues before the court were. On the next day January 3, Mother was testifying when the court merely interjected to clarify whether she sought admission of the deed to the marital residence, without any objection by Father.
Appellate courts are not required to “rummage in a dark cellar” to find support for “bald and undeveloped” contentions. See HNS Dev., LLC v. People’s Counsel for Balt. Cnty., 425 Md. 436, 459 (2012). When, as here, a “brief provides only sweeping accusations and conclusory statements[,]” without supporting citation to the record, we decline “to search for and supply . . . authority to support” the claimed error. See id.
Challenge to Grounds for Divorce
Next, Father contends that the circuit court “erred in not finding that the reason for the breakdown of the marriage was [Mother’s] actions and failing to notice that the case had been sealed upon the motion of [Father] to protect the minor child.” We disagree, discerning no error in the court’s predication of the divorce on irreconcilable differences.
As the circuit court recognized, revised Maryland law that took effect on October 1, 2023, authorizes absolute divorce on grounds of “irreconcilable differences based on the reasons stated by the complainant for the permanent termination of the marriage.” See FL § 7-103(a)(2). Under this new statute, the petition for divorce may include the prior grounds for faultbased divorce as “among the reasons” cited for irreconcilable differences.” See Lloyd v. Niceta, 485 Md. 422, 456 n.17 (2023).
During Father’s direct testimony, when the court observed, “Well, I’m here to decide, you’ve got to prove irreconcilable differences, right, is that what you’re proving the grounds are?[,]” Father answered, “Yes, Your Honor.” Both spouses then testified that they “have not gotten along” after “the breakup of the marriage[],” while residing in separate rooms and living different schedules and lives under the same roof for “more than a year.” The court found that Father complained about Mother “not learning English, and being much too involved with her church, which he . . . called a cult[,]” whereas Mother complained that Father “has been too controlling and demeaning of her.” Because there was no dispute and ample evidence on this issue, the court did not err in “finding they are living separate lives at this point” and granting Father’s “request for a divorce based upon irreconcilable differences.”
Challenge Based on Order Sealing Records
With respect to Father’s complaint about the court overlooking that the record was sealed, Father offers neither a citation to the record, nor any supporting argument. Again, we decline to speculate what Father is referring to or what remedy he seeks from this Court. See Md. Rule 8-504(a)(6) (requiring appellate briefs to present “[a]rgument in support of the party’s position on each issue); Honeycutt v. Honeycutt, 150 Md. App. 604, 618 (2003) (“the Estate failed to adequately brief this argument, and thus, we decline to address it on appeal”).
III. Marital Property
Father challenges multiple aspects of the circuit court’s decisions regarding marital property. Addressing each in turn, we explain why the court did not err or abuse its discretion in resolving the disputes based on the record before it.
Challenges to Allocation of Marital Property and Debts
Father contends that the circuit court erred in “not giving [him] credit for all outstanding debts of the parties which [he] continues to pay[,]” and in failing to “divide the marital property equally between the parties.”
Section 8-205(a)(1) of the Family Law Article provides that “after the court determines which property is marital property, and the value of the marital property, the court may transfer ownership of an interest in property described in paragraph (2) of this subsection, grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.” In making these determinations, the court must consider enumerated factors, which, according to Father, weighed in his favor. In applying the factors listed in FL § 8-205(b), Father claims the court erred in several respects.
First, in evaluating “the contributions, monetary and nonmonetary, of each party to the well-being of the family[,]” under FL § 8-205(b)(1) Father asserts that he “made all of the monetary contributions to the family” and “also was responsible for the transportation of the minor child to and from school, extracurricular activities, ensuring that the minor child does his homework and insists that the minor child study every night.”
Acknowledging that Mother “did most of the cleaning, starting with the bathroom once, or so a week, and the kitchen with [his] assistance[,]” he complains the court foreclosed him from questioning Mother “as to why she had not been working and making monetary contributions[.]”
Next, Father argues that the “circumstances that contributed to the[ir] estrangement[,]” under FL § 8-205(b)(4), is another factor that should have weighed in his favor. Father points to what he alleges were Mother’s “acts of violence to the minor child,” and “her failure to fulfill key promises to learn English and keep religion at bay.”
Regarding the factors set out under FL § 8-205(b)(8)-(9)— “how and when specific marital property . . . was acquired, including the effort expended by each party in accumulating[,]” and “the contribution by either party . . . to the acquisition of real property held by the parties as tenants by the entirety[,]”—Father contends that he alone “undertook to borrow money and get the mortgage,” and that no contribution was made by Mother. Father
asserts, “[y]et the trial court seems to suggest that who made what contribution is irrelevant.”
We observe that Father expressly agreed to pay certain marital debts, including the mortgage on the marital residence and car payments on the marital vehicle, in exchange for the court staying his alimony and child support obligations until June 1, 2024. When explaining its ruling regarding marital property and debts, the court correctly cited and applied the controlling legal standards:
Next is marital property. . . . In making a marital distribution, the Court must determine three factors, according to [F]amily [L]aw [A]rticle 8- 203 through 8-205 for a step in determining . . . what is marital property, property gathered by the parties during the marriage, and what is not marital property. The second step is valuing that marital property. The third step isconsidering whether a monetary award is appropriate in analyzing the factors in the statute.
First of all, factor one, which is the marital property. I agree with what the parties have come up with is the house on Celebration Way in Germantown, the Mazda CX5, [Father’s] . . . two accounts . . . and retirement account, and then [Mother’s] bank account. And [Father’s] vehicle is not marital property since it was acquired prior to the marriage.
As to the valuation. I’ll go with dad’s valuation. That is $400,000 for the home with a $250,000 mortgage on it. As to the Mazda, both seem to say 25,000 with a $5,000 debt lien on it. As to dad’s accounts, it was somewhat vague. I’ll go with what he had on the 9-207 [inventory] that there is 400 and 300 [dollars] . . . . Mom’s account was at 2,558. . . . As to [Father’s] retirement account, it looks at 150,000, but dad said $75,000 has already been withdrawn.
Next is the factors I must consider [which] are very similar to the alimony factors. . . . Contribution. Monetarily and nonmonetarily of both parties. I already addressed that, the alimony, and they both did. The value of the property. I’ve already listed that. The economic circumstances of each party. I don’t find that either is in a strong economic position at this point.
Circumstances that contributed to the estrangement of the parties. Already described. The duration of the marriage. The age of each party. The physical, mental condition, all those factors have been addressed in the alimony equation. How the property was gathered. It was all gathered through dad’s earnings through the marriage, or I’m saying, mostly, vastly.
The contribution of each party – the property described in 8-201(T)(3) of the subtitle, the acquisition of real property. Again, parties were contributing to raising [M.], and dad was doing most of the bread winning at the time. Any award of alimony. I just awarded $500. I did not make any award of use of the personal property, or the family home. . . .
As to the home, again, that’s a difficult thing because that’s the one place where the child knows, but I can’t imagine him staying in a place where there is such tension and anger between the parties at this time. That’s not helping. So I’ll order that the parties sell the home within 10 months of today. I’ll let them set the price, hire the real estate agent, because I’m trying to help them save as much money as they can. All proceeds, whatever they are, shall be equally divided between the parties, after paying off the mortgage obviously. [T]he mortgage continues to be paid by dad. As to the bank accounts. Each side shall keep their own
bank accounts. As to the Mazda CX5, I’ll order that whatever lien is left, it’s listed as 5,000. Whether it’s an exact amount or approximation, that amount should be taken out of the 401K retirement and paid off, and mom will keep the Mazda CX5 that she’s been driving. Dad will transfer title over to mom. Dad obviously keeps his own vehicle.
401K. That will be divided. Dad will get 60 percent. Mom will get 40 percent. One reason I’m doing that is, I’m concerned dad might have some penalties he may have to pay. . . . Dad, I think it goes without saying, will keep his vehicle. If there is a fixed pension at dad’s work, it will be awarded, if as and when, 60 percent to dad, 40 percent to mom.
It is clear that the court accepted what the parties identified as marital property, and when valuing the marital property, the court agreed with Father’s valuations. After applying the FL § 8-205(b)factors, the court asked Father whether he needed “[a] ny clarifications[.]” Father then requested clarification about when the order was final and about his appeal rights. After clarifying that the divorce was final “as of now[,]” and that Father was “required to pay” starting February 1, the court denied Father’s request “to stay the ruling until the appeal is filed[,]” because Mother “has to live on something.” Still, the court changed its ruling after Father pointed out that Mother “has no expense. Right now I am taking care of the expenses.” Although Mother had been paying him $1,000 a month toward household expenses, including the mortgage and car payments, Father explained that he did not have the resources to pay Mother $500 in monthly alimony and $877 in child support, while also losing her monthly $1,000 contribution:
The thing is that there’s no way I can pay – I’m making payments on this house and paying all the bills, no way I can do that and pay her $1,300 as well. There is just not enough money to do that. So it’s a period of adjustment for me, whether I pay her successfully or not, it’s a huge jump for me.
In response, the court reconsidered and revised its ruling to accommodate Father’s financial circumstances:
THE COURT: Well, let me think about that for a second. Are you going to . . . continue to pay the expenses?
[FATHER]: I a[m.] Yes, yes, it’s not – nothing has changed. I’ve always been paying the expenses, and so –
THE COURT: All right. Then I’ll tell you what, I’ll do what you ask with conditions. I will hold off – what’s this? February, March? I don’t know how long it will take you to get your appeal going and up because you better . . . do it fast.
[FATHER]: Uh-huh.
THE COURT: And you guys got to get going on selling the house. As long as dad pays all the expenses of the house and the cars, I’ll hold off on the alimony, the child support. You pay for all the food and everything. . . .
[M]om does not have to pay $1,000 a month to you during that period.
She may keep . . . her own checks. [FATHER]: Okay. That’s fine.
THE COURT: I will stay the order until June 1st.
Father, without acknowledging this exchange, complains
that the circuit court “refused” when he “asked for relief from . . . those debts[.]” Although he recognizes “that the court does not apportion debts during the divorce,” he argues that “the present circumstances might warrant a consideration of what to do with the debts of the parties.”
As the foregoing colloquy shows, however, the court correctly applied the law when ruling on marital property, specifically addressing marital debts on the marital residence and marital vehicle and finding that Mother did not make enough that she could contribute to post-divorce debt service. After awarding Mother monthly alimony and child support, the court required Father to pay off the Mazda with retirement account funds and transfer title to Mother. Father was also required to pay the mortgage pending sale of the marital residence. When Father objected that he could not afford to pay those debts, the court reconsidered its ruling. Based on Father’s promise to continue paying all marital debts pending his appeal, the court stayed his obligations to pay alimony and child support until June 1, 2024. Days later, M. was hospitalized with the life-threatening illness that resulted in the ongoing CINA proceedings.
Although we discern no error or abuse of discretion in the circuit court’s marital property and debt rulings, we agree with Father that changed circumstances may warrant modification of “what to do with the debts of the parties.” We recognize that the custody and needs of M. have materially changed since the Divorce Judgment, likely affecting the financial circumstances of both parents. However, as mentioned above, any request for relief from Father’s obligations under the Divorce Judgment must be addressed to the circuit court. See FL § 11-106(b); FL § 12-104(a).
Challenges to Orders Regarding Marital Residence and Vehicle
Next, Father contends that the circuit court erred or abused its discretion in ordering sale of the marital residence, not ordering sale of the marital vehicle driven by Mother, and in allowing Mother to remain in the marital residence indefinitely without contributing toward mortgage or expenses. To the extent these challenges have not been mooted by subsequent events and court orders, we are not persuaded the court erred or abused its discretion.
Questions about occupancy of the marital residence under the Divorce Judgment were mooted by subsequent court orders prohibiting Mother from living there and authorizing Father and M. to return post-bone marrow transplant. With respect to the Mazda acquired during the marriage, the court did not err or abuse its discretion in deciding that marital funds in Father’s retirement account should be used to pay off the remaining debt, then title transferred to Mother. The court had both authority and reasonable grounds to divide marital property so as to provide Mother title to the car that had been acquired with marital funds for her to be able to drive to work, especially given her limited income, and where Father had a working vehicle that he brought into the marriage. Accordingly, we cannot say on the record before us that the court erred or abused its discretion in ordering sale of the marital residence and not ordering sale of the marital vehicle driven by Mother.
IV. Child Support and Alimony
Father predicates his challenges to the child support and alimony orders in the Divorce Judgment on principles governing estoppel and voluntary impoverishment. Addressing each in turn, we again conclude the trial court did not err or abuse its discretion based on the law and the record at the time those decisions were made.
Estoppel Challenge
Father contends that the circuit court erred by not treating Mother’s “failure to adhere to a key element in” their pre-marital agreement as grounds for estopping her from receiving alimony and child support. In his view, she “reneged on” her promises to learn English to his detriment, citing his testimony that he spent “more than $40,000 just to get [her] to the United States[,]” and “because of these expenses,” “was sued two times[,]” “had his wages garnished[,]” and “was harassed so much by Customs that he filed a formal complaint with the Commission of Customs.”
In Lloyd v. Niceta, 485 Md. 422 (2023), our Supreme Court “recognize[d] that ‘[t]he general principles governing other types of contracts apply to’ marital agreements[,]” but “[t]his approach . . . does not prohibit this Court from deviating from common law contract principles when they are incongruent with principles governing marital contracts” because “[u]nlike other contracts, . . . a confidential relationship exists between the parties[.]” Id. at 446-47 (cleaned up) (citing McGeehan v. McGeehan, 455 Md. 268, 294 (2017)). For that reason, “marital agreements are necessarily infused with equitable considerations and are construed in light of salient legal and policy concerns[,] which may occasionally render normal tenets of contract interpretation inapplicable.” Id. (cleaned up) (citing Holtham v. Lucas, 460 N.J. Super. 308, 319-20 (App. Div. 2019)). Although Father broadly challenges the alimony and child support awards on the ground that they do not reflect Mother’s “breach” of her contract to learn English, we are satisfied that the court did weigh Mother’s language limitations on its evaluation of such equitable considerations.Alimony
In reviewing each statutory factor pertinent to alimony,7 the court discussed Mother’s language barrier in its finding regarding “[t]he circumstances that contributed to the estrangement of the parties”:
I think parties did not get to know each other prior to marriage, and didn’t see each other’s faults before marriage, and they were compounded during the marriage. I think dad’s lack of flexibility and mom’s not acquiring English contributed greatly to the break-up of the marriage.
The court nevertheless found that “both parties contributed” to “the well-being of the family.” Although Father was “the breadwinner throughout the bulk of the marriage” and the “active, energetic parent with the education, with cultural matters, and with bettering the child[,]” in part due to M.’s limited English, Mother was “now contributing $1,000 a month” because “she’s been working recently[,]” and she “contributed to cooking and cleaning, washing, raising the child.” We conclude the circuit court properly factored into its alimony determination the consequences of Mother’s failure to learn English, as a contributing cause of the breakdown of
the marriage and as a factor affecting both her ability to become self-supporting and her current income.
Finding that Mother earned $3,033 monthly, while Father earned $7,000, the court stated that it “thought long and hard about” whether Mother could “reasonably be expected to [make] substantial progress [toward] being self-supporting, or whether the respective standards of living would be unconscionably disparate.” Instead of indefinite alimony, the court awarded Mother $500 monthly for six years, emphasizing that “there is just not much to go around” and that “both sides . . . are going to have to earn some extra money.”
Child Support
Father also contends that the circuit court erred in failing to consider Mother’s broken promise to learn English in setting child support, citing the court’s remark, when calculating child support, “That’s beyond my control. I will be reversed if I did not award that. That’s by statute.” In our view, this remark reflects the court’s recognition that our General Assembly has enacted “a rebuttable presumption that the amount of child support which would result from the application of the child support guidelines . . . is the correct amount of child support to be awarded.” FL § 12-202(a)(2)(i). As this Court has recognized, “the goals of equity and consistency in child support awards are best served by stripping the court of most discretion, thereby reducing the decision to a purely mathematical exercise in which support obligations and related expenses are allocated between the parents in proportion to their ‘actual income.’” Ruiz v. Kinoshita, 239 Md. App. 395, 426 (2018) (quoting Lemley v. Lemley, 102 Md. App. 266, 291 (1994)).
This statutory “presumption may be rebutted by evidence that the application of the guidelines would be unjust or inappropriate in a particular case.” FL § 12-202(a)(2)(ii). Section 12-202(a)(2)(iii) of the Family Law Article sets forth a non-exhaustive list of factors that must be brought to the circuit court’s attention by the parent seeking to rebut the presumption that the guidelines amount of child support is correct.8
Viewing the court’s remarks in the context of this established framework, we discern no legal error or abuse of discretion. Father does not contend that he presented evidence sufficient to rebut the presumption in favor of the Guidelines amount of child support, and we see none. Nevertheless, given the CINA proceedings affecting custody based on M.’s health needs, which have superseded the shared custody order on which the child support order was predicated, Father may seek modification in the circuit court if he has not already done so. See FL § 12-104(a) (“The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.”).
Voluntary Impoverishment Challenge
As alternative grounds for contesting child support and alimony, Father contends that “the trial court erred in holding that [Mother] is not voluntarily impoverished.” For purposes of child support, “‘[v]oluntarily impoverished’ means that a parent has made the free and conscious choice, not compelled by factors beyond the parent’s control, to render the parent without adequate resources.” FL § 12-201(q). When the General
Assembly codified Maryland’s common law regarding voluntary impoverishment in 2020, see Acts of 2020, chs. 383, 384 (H.B. 946, S.B. 847), it established a two-step process, requiring the court to “make a finding as to whether, based on the totality of the circumstances, the parent is voluntarily impoverished[,]” FL § 12-204(b)(2)(i), and if so, to “consider the factors specified in [FL] § 12-201(m) . . . in determining the amount of potential income that should be imputed to the parent.” FL § 12-204(b) (2)(ii). These incorporate common law factors pertinent to the earning capacity of each spouse, including:
(1) his or her current physical condition;
(2) his or her respective level of education;
(3) the timing of any change in employment or other financial circumstances relative to the divorce proceedings;
(4) the relationship between the parties prior to the initiation of divorce proceedings;
(5) his or her efforts to find and retain employment;
(6) his or her efforts to secure retraining if that is needed;
(7) whether he or she has ever withheld support;
(8) his or her past work history;
(9) the area in which the parties live and the status of the job market there; and
(10) any other considerations presented by either party.
For alimony purposes, the concept of imputing income to a spouse under a voluntary impoverishment theory is not statutory, but instead predicated on analogous inquiry into employment-related factors. As this Court has explained,
[t]he Family Law Article does not expressly require a trial court to consider a spouse’s voluntary impoverishment or potential income for alimony purposes. Using more general terms, the alimony statute directs the court to “consider all the factors necessary for a fair and equitable award,” including: “the ability of the party seeking alimony to be wholly or partly selfsupporting” (FL § 11–106(b)(1)); “the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment” (FL § 11–106(b) (2)); and “the financial needs and financial resources of each party, including . . . all income and assets” (FL § 11–106(b)(11) (i)). Consequently, the court may consider the potential income of a voluntarily impoverished spouse when it considers an alimony request.
St. Cyr v. St. Cyr, 228 Md. App. 163, 179-80 (2016) (citations omitted).
In Father’s view, the circuit court erred in rejecting his argument that Mother “is able to work, . . . but chooses not to do so” even after Father “provided sufficient resources so she could” learn English and obtain employment. In support, Father argues:
• Mother failed to become “fluent in English so she could seek employment in the medical profession, and . . . help [him] with child-related functions (liaising with teachers helping with homework, organizing his activities and the like).”
• Although Father obtained “legal permanent residence” for Mother “upon arrival in the United States,” she “enrolled in school to learn English” only “[f]or a brief period” and “[t] hereafter . . . sporadically attended such classes and stopped
altogether by 2018.”
• Although “it was always understood that [Mother] would seek employment[,]” she presented “no evidence that [she] has sought any employment as no W2 was eve[r] sent by any employer.”
• When the family moved to Germantown in 2016, there were free English lessons offered in the immediate area, at a public library, high school, and community college. In 2018, “[a]s an incentive” to attend English classes, Father “entered into debt and bought” a vehicle “for her exclusive use,” then replaced that vehicle in 2020 with a Mazda CX-5.”
• Mother “is not disabled or unable to work[,]” and “admits to being a member of a dance group.”
• Although Mother told Father before they married “that she wasn’t religious,” she was “frequently absent from the residence” and “spent a lot of time in a ‘church’” at “a private residence[.]” In addition, she “set the alarm for 4:00 a.m.” to watch “one pastor on Youtube after that other” while disturbing Father and M., who had to go to work and school.
• Although Mother testified at the hearing that “she worked at a[n early school]” during “a three-month period, just before trial,” “she left this position around the beginning of this year and has not worked since.”
The circuit court pointed out that Father did not timely raise the issue of voluntary impoverishment, then decided that Mother did not voluntarily impoverish herself, explaining: [D]ad raised in closing about voluntary impoverishment. Again, the Court can’t consider that, A, because it wasn’t raised during trial, B, because it wasn’t raised in pleadings, and, C, even if it did, the Court would not find that mom in any way voluntarily impoverished herself, and I didn’t see any information that he was encouraging her to go to work, or that he knew of any jobs that would be paying greater sums.
The fact that she did not learn English quicker does not equate to voluntary impoverishment. Under that theory, somebody losing a license, somebody having an addiction, would be voluntary impoverishment. That’s not how voluntary impoverishment works.
To the extent Father waited until closing argument to claim that Mother’s failure to learn English and to obtain employment constituted voluntary impoverishment, such delay in raising the language issue prevented the court and the parties from fully exploring it during their testimony. Cf. Harbom v. Harbom, 134 Md. App. 430, 461 (2000) (finding waiver because “the issue of voluntary impoverishment was never raised at trial, nor was the possibility of attributing potential income to appellee in calculating child support”). In any event, the court did not err or abuse its discretion in concluding that Mother did not voluntarily impoverish herself. Cf. id. (“Assuming . . . that the issue has not been waived, we find that the trial court did not abuse its discretion in not ruling that appellee was voluntarily impoverished.”). In evaluating both alimony and child support, the court specifically cited the lack of any evidence that Father encouraged her to work during the marriage, that Mother recently started working in a school, and that she could continue working. Based on this record, and the court’s opportunity to
observe Mother as she testified (through an interpreter), the court was not persuaded that Mother’s failure to learn English— although a factor in the breakdown of the marriage, and in her lack of employment until divorce proceedings began— amounted to an intentional “choice, not compelled by factors beyond [her] control, to render [herself] without adequate resources.” FL § 12-201(q). We cannot say that the circuit court erred or abused its discretion in doing so. See Harbom, 134 Md. App. at 460 (“Assuming . . . that the issue has not been waived, we find that the trial court did not abuse its discretion in not ruling that appellee was voluntarily impoverished.”).
To the extent either parent’s financial circumstances have materially changed after the Divorce Judgment, whether as a result of M.’s medical needs, related legal proceedings, and/or employment, that is a matter that may be addressed to the circuit court as grounds for modifying alimony and child support. See FL § 11-107(b) (authorizing the circuit court to “modify
the amount of alimony awarded as circumstances and justice require”); FL § 12-104(a) (authorizing modification of child support “subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.”).
Effect of Alimony and Property Settlement on Father’s Finances
In his final assignment of error, Father contends the trial court erred in awarding Mother alimony and a “property settlement” that “effectively impoverish[es]” him. Because he cites no record or law, and makes no supporting argument, we need not address this issue. See Md. Rule 8-504(a)(6); Honeycutt v. Honeycutt, 150 Md. App. 604, 618 (2003). Nevertheless, we again recognize that Father may seek relief from alimony and child support based on material changes in his financial circumstances precipitated by M.’s health needs, through modification proceedings in the circuit court. See FL § 11-106(b); FL § 12-104(a).
APPELLANT’S CUSTODY CLAIM DISMISSED AS MOOT; IN ALL OTHER RESPECTS, JUDGMENT OF ABSOLUTE DIVORCE ENTERED JANUARY 16, 2024, BY THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
APPENDIX A
Summary of Appellant’s Questions on Appeal
“1. Whether the court was in error when, in seeking to divide up the marital property, in not giving Appellant credit for all outstanding debts of the parties which Appellant continues to pay to this day.”
“2. Whether the trial court erred in holding that Appellee is not voluntarily impoverished.”
“3. Whether contract rules apply in this context. Whether the failure to adhere to a key element in the agreement Exhibits one and two) estops her, thereby depriving her of the ability to claim alimony or support.”
“4. Whether the trial court erred in allowing Appellee to stay in the marital property but not contribute towards the mortgage and other expenses indefinitely.”
“5. Whether the judge was wrong in applying the marital distribution laws incorrectly stating that he is required to divide the marital property equally between the parties.”
“6. Whether the court erred in awarding shared custody to the parties without an analysis showing why that would be in the best interests of the minor child, especially since Appellee did not display any independent ability to look after the child on
a school day, has no planned resident [sic] at the moment, and her work schedule, according to her testimony would not allow her to get the child to and from school, since she is working during those periods. . . .[Mother] stated that she had joint legal custody and she is exercising that right to deny [M.] treatment[.] . . . Alarmed, the hospital put [M.] on life support and contacted the Montgomery County Child Protection Services. That agency filed an emergency request for a [CINA] petition with the Circuit Court.
“7. Whether the trial judge erred in repeatedly interrupting the proceedings in the process debating and arguing with the appellant, shutting off cross examination, and asking that January 4 hearing page 21, line 20, thereby throwing the whole issue into confusion.”
“8. Whether the trial judge erred in not finding that the reason for the breakdown of the marriage was Appellees [sic] actions and failing to notice that the case had been sealed upon the motion of Appellant to protect the minor child.”
“9. Whether the court err in ordering the house to be sold but not the Mazda.”
“10. Whether the trial court erred in awarding Appellee both Alimony and property settlement thereby effectively impoverishing Appellant who needs more money in order to care for the minor child.”
FOOTNOTES
1 For the reasons explained in this opinion, we must include certain facts and determinations from the intervening case brought by the Montgomery County Department of Social Services requesting emergency shelter care for the child in this case. Accordingly, to protect the identity of the child, we shall refer to all members of the family by their initials.
2 Father is a former member of the Maryland bar.
3 We have recognized that courts may take judicial notice of the records in prior CINA proceedings. In re Priscilla B., 214 Md. App. 600, 629 n.4 (2013) (citing In re Nathaniel A., 160 Md. App. 581, 598 n.1 (2005)); see also Dashiell v. Meeks, 396 Md. 149, 176 (2006) (explaining that courts may “travel outside the record of the case before it in order to take notice of proceedings in another case,” by “mak[ing] use of established and uncontroverted facts not formally of record in the pending litigation[,]” “in order to reach a just result[.]”).
4 A “child in need of assistance” is “a child who requires court intervention because:
(1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” Md. Code (1973, 2020 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”) § 3-801(f).
5 Father states in his brief that
“[a]fter the trial, on January 21, 2024, the minor child was admitted to Johns Hopkins Hospital in Baltimore, MD for what turned out to be a life- threatening medical condition called aplastic anemia. This condition is a complete collapse of his immune system. Several components of his immune system were at dangerously [sic] levels. His neutrophil counts, his first line of defense against any infection, were zero and continue to remain so. . . . More hospitalization is to be expected as the condition is very difficult to treat.”
7 When determining alimony, the court must consider the following statutory “factors necessary for a fair and equitable award”:
(1) the ability of the party seeking alimony to be wholly or partly self- supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well- being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
8 FL § 12-202(a)(2)(iii) provides:
(iii) In determining whether the application of the guidelines would be unjust or inappropriate in a particular case, the court may consider:
1. the terms of any existing separation or property settlement agreement or court order . . . ;
2. the presence in the household of either parent of other children to whom that parent owes a duty of support and the expenses for whom that parent is directly contributing; and
3. whether an obligor’s monthly child support obligation would leave the obligor with a monthly actual income below 110% of the 2019 federal poverty level for an individual.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s $2,258,646.13 monetary award, indefinite alimony in the amount of $20,000 per month and $188,667.22 in attorney’s fees to wife.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
Ms. Neofitou suggests that Mr. Koulatsos’s notice of appeal was untimely because it was filed before the circuit court’s April 19, 2024 order.
This appeal comes to us from the Circuit Court for Baltimore County following its issuance of judgment of absolute divorce that dissolved the marriage of Appellant Dionisios Koulatsos and Appellee Margo Koulatsos, who now goes by the name Margo Neofitou.1 Here, Mr. Koulatsos challenges the circuit court’s granting of a monetary award, indefinite alimony, and attorney’s fees to Ms. Neofitou.
On appeal, Mr. Koulatsos presents four questions for our review. 2 We reorder and rephrase these as:
1. Did the circuit court clearly err in finding that Mr. Koulatsos failed to prove Ms. Neofitou’s dissipation of marital assets?
2. Did the circuit court abuse its discretion in making Ms. Neofitou a monetary award in the amount of $2,258,646.13?
3. Did the circuit court abuse its discretion in granting Ms. Neofitou indefinite alimony in the amount of $20,000 per month?
4. Did the circuit court abuse its discretion in ordering that Mr. Koulatsos pay Ms. Neofitou’s attorney’s fees in the amount of $188,667.22?
Preliminarily, Ms. Neofitou argues that this appeal should be dismissed because Mr. Koulatsos’s notice of appeal was untimely.3 We disagree. The circuit court entered its judgment on February 27, 2024. On March 6, 2024, Mr. Koulatsos timely filed, within ten days, a motion to alter or amend pursuant to Maryland Rule 2-534.4 Mr. Koulatsos withdrew this motion on March 20, 2024. On April 2, 2024, Mr. Koulatsos filed a notice of appeal. On April 19, 2024, the circuit court entered an order that Mr. Koulatsos’s motion to alter or amend was withdrawn.
As Ms. Neofitou surmises in her brief, however, Mr. Koulatsos’s notice of withdrawal was incorrectly docketed as a motion in the Maryland Electronic Courts (“MDEC”)5 system. We have previously said that “although docket entries are entitled to a presumption of regularity, and must be taken as true until corrected, they are not sacrosanct, and the presumption may be rebutted.” Rainey v. State, 236 Md. App. 368, 383 (2018) (cleaned up). Here, we agree with Mr. Koulatsos that the document filed— titled “Withdrawal of Motion to Alter, Amend, or Reverse”—was not a motion: it was not described as a motion and did not set forth “the relief or order sought” from the court, or “state with particularity the grounds and the authorities in support of each ground” for Mr. Koulatsos’s withdrawal of his motion, all as required by Maryland Rule 2-311.6 Cf. Corapcioglu v. Roosevelt, 170 Md. App. 572, 590 (2006) (“It is well established in Maryland law that a court is to treat a paper filed by a party according to its substance, and not by its label.”).
Because Mr. Koulatsos’s motion to alter or amend was itself timely filed and he filed his notice of appeal within thirty days of withdrawing that timely motion, his notice of appeal was also timely. See Maryland Rule 8-202(c) (“In a civil action, when a timely motion is filed pursuant to Rule 2-532, 2-533, 2-534, or 11218, the notice of appeal shall be filed within 30 days after entry of (1) a notice withdrawing the motion ”). Mr. Koulatsos’s notice of appeal was filed on April 2, 2024, which is within thirty days after March 20, 2024, the day Mr. Koulatsos’s notice withdrawing his motion to alter or amend was entered. Accordingly, we deny Ms. Neofitou’s dismissal motion.
Moving to the merits of Mr. Koulatsos’s appeal, we answer all four questions above in the negative and affirm the judgment of the circuit court.
BACKGROUND
The parties were married in 1991 and separated on March 15, 2020. Both are in their late fifties. They are the parents of two adult children.
Ms. Neofitou filed a complaint for absolute divorce in June 2020, seeking a monetary award, indefinite alimony, and attorney’s fees from Mr. Koulatsos. Ms. Neofitou attributed the end of the parties’ marital relationship to Mr. Koulatsos’s affair. Mr. Koulatsos opposed Ms. Neofitou’s requested relief. Mr. Koulatsos attributed the end of the marital relationship
to Ms. Neofitou’s behavior, including frequent marijuana use. Mr. Koulatsos, too, requested a monetary award, among other relief. Both parties claimed that the other improperly dissipated marital assets.
The circuit court tried the merits of the parties’ divorce case from February 12 to February 15, 2024. The parties testified, as did an employee of the company at which Mr. Koulatsos worked, a vocational rehabilitation expert, and a financial expert. The parties also introduced many exhibits related to their finances, property, and their post-separation communications with each other.7
Shortly after their separation, the parties agreed to split $2 million worth of marital property, with each taking $1 million in cash. The parties sold the marital home after separating, along with their other properties, and deposited the proceeds in an escrow account. Ms. Neofitou now lives in a townhouse that she purchased in May 2020. Mr. Koulatsos now lives with his girlfriend and her children in a home that Mr. Koulatsos purchased from his girlfriend in November 2022.
Ms. Neofitou stopped working in June 1992 before the parties’ first child was born because the parties agreed that she would be the primary caregiver for their children. Ms. Neofitou attended college but does not have a college degree or any other certificate. Ms. Neofitou explained that she expressed interest in returning to her previous job after the parties’ children went to college, but Mr. Koulatsos opposed this idea as it would be “beneath her.” Ms. Neofitou testified about her contributions to managing the parties’ household and their several properties. Ms. Neofitou also served as the primary caregiver for Mr. Koulatsos’s mother for many years.
Ms. Neofitou was not expecting the separation and was not aware that Mr. Koulatsos was having an affair. The situation significantly affected her mental health and the mental health of the parties’ son. Ms. Neofitou eventually returned to work after the parties’ separation. At the time of the divorce merits trial, she was working as a manager part-time at a home goods store earning $16 per hour. Ms. Neofitou has also earned approximately $3,500 selling paintings since the parties separated.
With respect to her standard of living, Ms. Neofitou testified that “[t]hings have drastically changed.” According to her February 2024 financial statement,8 her total monthly expenses were $11,120 (including $2,500 categorized as miscellaneous expenditures) and her total monthly income was $2,972.59. Since the parties separated, Ms. Neofitou has adjusted her shopping habits; there are “other nicer stores” at which she used to routinely shop. Ms. Neofitou testified about the $226,667.22 in attorney’s fees she had incurred.
During the marriage, Ms. Neofitou primarily managed the parties’ finances and wrote checks. Nonetheless, according to Ms. Neofitou, Mr. Koulatsos was aware of these decisions and sometimes directed them. Ms. Neofitou and Mr. Koulatsos accumulated significant savings while married, which were typically put into savings accounts. Ms. Neofitou explained that they had previously invested money in the stock market in the “first few years of marriage” but because it “didn’t go well, [they] stopped.” When cross- examined about whether she would be able to generate investment income from $2,000,000 in assets,
Ms. Neofitou agreed that she would be able to “make $50,000 per year at 5%” provided that “interest rates stay the same way[.]”
During cross-examination, Ms. Neofitou was questioned about checks she wrote between 2014 and 2020 withdrawing money from the parties’ accounts. She was unsure about the purpose of a $20,000 check written on March 5, 2020—before the parties separated—but stated that she was “sure” that she and Mr. Koulatsos “had a bill to pay” because she would not have “just take[n] money out for no reason.” She explained that she and Mr. Koulatsos “did a lot of transactions like that . . . on regular basis.” Ms. Neofitou testified that the purpose of two checks—one for $9,500 in 2018 and one for $9,000 in 2019—was to have cash while the parties were on vacation in Greece and Portugal. With respect to a $100,000 check in 2014 and checks for $245,000 and $700,000 in 2016, she explained that these were bank transfers motivated by differing interest rates. Ms. Neofitou also testified that she had given the parties’ children $166,000 after separation.
Mr. Koulatsos worked long hours for the entirety of the parties’ marriage, first briefly at his father’s carry-out stand and later in the car sales industry. At the time of trial, he was working sixty to eighty hours a week as the general manager of an automobile dealership and had earned an annual average of $3.5 million from 2021 to 2023. His financial statement from December 2020 indicated that his surplus income (his monthly income less his monthly expenses) was $79,646 per month. Mr. Koulatsos’s girlfriend is an authorized user on one of his credit cards and has made purchases for their household as well as purchases for herself. Mr. Koulatsos paid for one semester of college tuition for both his girlfriend’s daughter and her son, which amounted to approximately $22,000 to $27,000 total.
Mr. Koulatsos’s reasons for ending the marriage included Ms. Neofitou’s disinterest in him and her frequent use of marijuana over the years, as well as the behavior of Ms. Neofitou and the parties’ children that he perceived as disrespectful. In Mr. Koulatsos’s view, Ms. Neofitou contributed to their marriage during the first twenty years, but “not so much the last ten [years,]” and that she was “[o]ne hundred percent” the cause of their separation. Mr. Koulatsos began an intimate relationship with his current girlfriend in approximately 2016 when the parties were still married. Mr. Koulatsos said that Ms. Neofitou “met none of [his] needs.”
As to who managed the parties’ money, Mr. Koulatsos testified that Ms. Neofitou did, but that he did not know about or authorize the $20,000 check in March 2020, the $9,500 check in 2018, the $9,000 check in 2019, and the $700,000 and $245,000 checks in 2016. Mr. Koulatsos also admitted that he and Ms. Neofitou had continued to support their children financially in adulthood.
Testimony from both parties demonstrated that they enjoyed an affluent lifestyle while married. In addition to the parties’ large marital home in a wealthy neighborhood, the parties owned several other properties for vacation and investment purposes. The parties traveled frequently together (as evidenced by a trip to Naples right before their separation in March 2020), hosted elaborate gatherings, purchased expensive gifts, owned permanent seat licenses for the Baltimore Ravens, and made significant charitable contributions.
Mr. Koulatsos called Sondra McDermott to testify. For eighteen years, Ms. McDermott has been the comptroller of the car dealership where Mr. Koulatsos is the general manager. Mr. Koulatsos works long hours and has been a “great” general manager. According to Ms. McDermott, Ms. Neofitou did not come often to the dealership and that when she observed Ms. Neofitou at several company events, she believed Ms. Neofitou “did not want to be there.”
Mr. Koulatsos also called Steven Shedlin, a vocational rehabilitation counselor who provided expert testimony regarding how much Ms. Neofitou would be capable of earning. According to Mr. Shedlin, Ms. Neofitou could earn approximately $38,000 to $42,000 in the Baltimore and Harford County area as an assistant property manager.9
Mr. Koulatsos also called Kristopher Hallengren, a financial expert, to testify about the parties’ financial circumstances, including predictions about their future earnings. With respect to Mr. Koulatsos, Mr. Hallengren testified that his average annual income from 2015 to 2020 (i.e., in the years leading up to and including the year of the parties’ separation) was approximately $1.723 million. Mr. Hallengren calculated that Mr. Koulatsos’s accumulated income post-separation from March 2020 to January 2024 was approximately $6.7 million total (after taxes and other deductions). Mr. Hallengren also detailed the bank accounts in which Mr. Koulatsos had deposited his postseparation income as well as the balances of these accounts over time.10
With respect to Ms. Neofitou, Mr. Hallengren summarized a historical spending analysis comparing her July 2022 financial statement with the charges reflected on her credit card and checking account statements from May 2020 through April 2023. Mr. Hallengren testified that, after removing “nonrecurring expenses[,]” her monthly spending was $4,466. When asked whether he believed Ms. Neofitou’s expenses as listed on her financial statement were overstated, Mr. Hallengren testified that he believed they were.
With regard to income from investments, Mr. Hallengren predicted that Ms. Neofitou could generate between $82,000 and $130,000 per year from investments. To determine whether Ms. Neofitou would have enough capital to meet her needs in retirement, Mr. Hallengren went through six different retirement capital analyses. These analyses relied on the assumption that Ms. Neofitou would receive approximately $2,000,000 in assets and $400,000 in retirement benefits after the divorce, and that Ms. Neofitou would continue working and receive an annual salary of $57,422 until age seventy. The six scenarios varied in their estimates of her monthly expenses ($3,500, $5,000, or $7,000 per month) and the rate of net investment return (0.0%, 0.75%, 3.2%, or 5%).
Based on the retirement capital analyses, according to Mr. Hallengren, Ms. Neofitou’s employment and projected investment income would be sufficient to meet her needs for the rest of her life. On cross examination, Ms. Neofitou’s counsel questioned Mr. Hallengren about his calculations, noting that the analyses did not account for future spending needs, or things Ms. Neofitou wants, as she ages. Mr. Hallengren admitted that he was not familiar with Maryland alimony case law about “unconscionable disparity.”
On February 26, 2024, in a written decision, the circuit court granted the parties an absolute divorce and addressed their other requests for relief. The circuit court ordered that Mr. Koulatsos pay Ms. Neofitou a monetary award in the amount of $2,258,646.13.11 In doing so, it found that neither party had proven dissipation. The circuit court also awarded Ms. Neofitou indefinite alimony in the amount of $20,000 per month and attorney’s fees in the amount of $188,667.22.
With respect to dissipation, the circuit court found that “[n]either party [] met the burden to support a claim for dissipation.” The circuit court further described Mr. Koulatsos’s claim as being “based on allegations about [Ms. Neofitou] moving around funds between bank accounts in 2016[,]” the timing and circumstances of which would not justify an award for dissipation.
With respect to its monetary award of $2,258,646.13 to Ms. Neofitou, the circuit court included in its opinion a table identifying and valuing the parties’ marital and non- marital property. The court also referred to the factors enumerated in Section 8-205(b) of the Family Law Article. See Md. Code Ann., Fam. Law (“FL”) § 8-205(b). The circuit court “reviewed and considered the testimony and other evidence presented and the relevant factors[.]” The circuit court explained that Mr. Koulatsos’s “contributions to the well-being of the family were primarily monetary in nature” and that Ms. Neofitou “raised the children, managed and maintained the household, and assisted with the management of the parties’ investment properties.” The circuit court contrasted Ms. Neofitou’s part-time job earning her $16 per hour with Mr. Koulatsos’s average annual income of $3.5 million over the past three years to find that “the parties’ current respective financial circumstances support a marital award to [Ms. Neofitou].” Considering Mr. Koulatsos’s affair and related decision to separate from Ms. Neofitou, the circuit court attributed the parties’ estrangement to Mr. Koulatsos, a finding that supported a monetary award to Ms. Neofitou. The circuit court found that the parties’ almost thirty-year marriage, the respective ages of Mr. Koulatsos (59) and Ms. Neofitou (57), and their overall health also support a marital award. The circuit court also considered the post-separation savings Mr. Koulatsos had accumulated in savings and checking accounts titled in his name.12 The circuit court acknowledged, as Mr. Koulatsos admitted, that these were marital property.
After considering the relevant Section 8-205(b) factors, the circuit court ordered that Mr. Koulatsos pay Ms. Neofitou $2,258,646.13, concluding that “it would be inequitable to [Ms. Neofitou] if each party were to retain the property as titled[.]” This amount corresponded to approximately one-half of the value of Mr. Koulatsos’s savings and checking accounts.13
As the circuit court recognized in its opinion, several of the factors applicable to monetary awards overlap with the alimony factors under Section 11-106(b) of the Family Law Article. See FL § 11-106(b). Based on the evidence presented and the required factors, the circuit court concluded that “whether [Ms. Neofitou] should be awarded alimony is not even remotely a close call.”
Considering Ms. Neofitou’s education level and previous work experience, the circuit court found that “[Ms. Neofitou] has at least the ability to be partially self- supporting[,]” noting
that she had been “out of the workforce for approximately 30 years[.]” The circuit court discussed the evidence presented by Mr. Koulatsos’s vocational rehabilitation expert about the potential for Ms. Neofitou to earn more as an assistant property manager or property manager, but found that “[t]here was no evidence that she had received any training, formal or otherwise, in professional property management.” The circuit court found that Ms. Neofitou “does not have sufficient time to earn and save any amount close to [Mr. Koulatsos’s] earnings and savings potential.”
The circuit court described the parties’ “affluent” lifestyle and the “more-than- comfortable” standard of living enjoyed during the marriage. The circuit court referenced the parties’ “luxurious” home, multiple investment properties and vacation homes, and other substantial assets. The circuit court considered the “long-term” nature of the parties’ marriage, which lasted almost thirty years before the parties’ separation. The circuit court noted that, although “[t]he parties’ relationship was on a rocky path before they separated” and the parties were sleeping in separate bedrooms, they “seemed to be peacefully co-existing for the most part.” The circuit found that “[m]ore of the blame for the deterioration of the parties’ marriage should be placed on [Mr. Koulatsos]” because “[w]hat seemed to put the final nail in their matrimonial coffin was [Mr. Koulatsos’s] decision to separate from [Ms. Neofitou], a decision that seems to have been at least in part motivated by his desire to pursue a relationship with a co-worker with whom he was having an affair.”
The circuit court noted that the parties are both in their late fifties and “seem to generally be in good physical and mental health.” The circuit court found that Mr. Koulatsos “has more than sufficient earnings to meet his needs while also meeting [Ms. Neofitou]’s needs through alimony[.]” The circuit court noted that the “parties were unable to reach any agreement regarding alimony.”
The circuit court found that indefinite alimony in the amount of $20,000 per month was appropriate in this case because “the parties’ respective standards of living will be unconscionably disparate for the foreseeable future.” In making this decision, the circuit court considered the parties’ relative contributions and standard of living while married, Ms. Neofitou’s current and potential future income, her testimony about her monthly expenses, and Mr. Koulatsos’s ability to meet Ms. Neofitou’s needs while meeting his own and contributing to the needs of his girlfriend and their household.14
The circuit court also considered the testimony of Mr. Koulatsos’s financial expert about Ms. Neofitou’s ability to increase her income through an investment strategy. However, the circuit court found this testimony problematic because it “presumes [Ms. Neofitou] should have to adopt an investment strategy that the parties eschewed because of their negative experiences with the stock market[]” and it did not focus on the sufficiency of such a strategy to avoid an unconscionable economic disparity. The circuit court calculated that, even imputing a significantly higher income for Ms. Neofitou of $58,000 based on the proposal by Mr. Koulatsos’s expert, Ms. Neofitou’s income would still make up only 1.63% of the parties’ combined income. Beyond the disparity between the parties’
respective incomes, the circuit court focused on Ms. Neofitou’s ability “to continue to build a ‘nest egg’ of her own to ensure that she has the means to live a comfortable and financially secure lifestyle, even if it is a far cry from the lifestyle the parties had when they were together.”
With respect to Ms. Neofitou’s request for attorney’s fees, the circuit court first discussed the standards for awarding discretionary and mandatory attorney’s fees under Section 8-214 of the Family Law Article. See FL § 8-214.15 The circuit court explained that it was awarding discretionary attorney’s fees under FL § 8-214(b) because “[t]he differences between the parties’ respective financial resources and the parties’ respective needs support awarding her legal fees” and because Ms. Neofitou “had a substantial justification for pursuing relief in this case, as demonstrated by the award of indefinite alimony and a substantial marital award.” The circuit court found that the “charges were fair, reasonable and necessary” after reviewing the invoices, noting that Mr. Koulatsos’s attorney’s fees were significantly higher and totaled approximately $500,000. Given that Mr. Koulatsos had already contributed $38,000 to Ms. Neofitou for the purpose of attorney’s fees, the circuit court subtracted this amount from the total of her attorney’s fees and ordered Mr. Koulatsos to pay the remainder: $188,667.22.
As discussed above, Mr. Koulatsos filed a timely notice of appeal after filing—and withdrawing—a motion to alter or amend. We add additional facts below as necessary.
STANDARD OF REVIEW
We review for clear error a trial court’s findings regarding dissipation. Omayaka v. Omayaka, 417 Md. 643, 652 (2011) (explaining that “[i]f there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous”). We review for abuse of discretion a trial court’s ultimate decision regarding whether to grant a monetary award, and the amount of such an award. Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008) (explaining that, under an abuse of discretion standard, “we may not substitute our judgment for that of the fact finder, even if we might have reached a different result” (cleaned up)).
For alimony awards, we review for clear error a trial court’s determination of whether an unconscionable disparity exists. K.B. v. D.B., 245 Md. App. 647, 669 (2020). We review for abuse of discretion a trial court’s ultimate decision regarding the amount and duration of an indefinite alimony award. Solomon v. Solomon, 383 Md. 176, 196 (2004) (“An alimony award will not be disturbed upon appellate review unless the trial judge’s discretion was arbitrarily used or the judgment below was clearly wrong.”); see also K.B., 245 Md. App. at 670 (“In cases involving dramatic income disparities after long marriages, this Court has found an abuse of discretion in a trial court’s failure to award indefinite alimony[;] . . . [e]ven in cases where indefinite alimony is granted, a court abuses its discretion if the amount of indefinite alimony does not alleviate the remaining disparity” (cleaned up)).
As to an award of attorney’s fees under FL § 8-214(b), we review for abuse of discretion; “such an award should not be modified unless it is arbitrary or clearly wrong.” Huntley v. Huntley, 229 Md. App. 484, 489 (2016) (explaining that “[a]buse
of discretion is determined by evaluating the judge’s application of the statutory criteria as well as the consideration of the facts of the particular case” and that “[c]onsideration of the statutory criteria is mandatory in making an award and failure to do so constitutes legal error” (cleaned up)).
DISCUSSION
I.
Dissipation and Monetary Award
Trial courts are required to follow a three-step procedure when considering whether to grant a monetary award. Malin v. Mininberg, 153 Md. App. 358, 428 (2003). First, the trial court determines whether property is marital or non-marital.16 FL §§ 8- 201(e)(1), 8-203. Second, the trial court determines the value of all marital property. FL § 8-204. Third, the trial court decides whether the division of marital property according to title is fair and, if not, the trial court may rectify the inequity by making a monetary award. FL § 8-205(a). FL § 8-205(b) sets forth the factors that the trial court must consider regarding a monetary award:
(1) the contributions, monetary and nonmonetary, of each party to the well- being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.
FL § 8-205(b).
Property disposed of before trial generally cannot be considered marital property. Abdullahi v. Zanini, 241 Md. App. 372, 414 (2019). However, there is an exception: “[w]hen dissipation is found, the court may include, as extant marital property, marital property that was transferred, spent, or disposed of in some fashion by one of the spouses.” Id. at 415 (cleaned up). Dissipation occurs when one party uses marital funds or property for a purpose unrelated to the marriage. Omayaka, 417 Md. at 651. Timing is “critical” in litigating such a claim: the focus is on after separation or the time when the marriage has undergone an irreconcilable breakdown. Heger v. Heger, 184 Md. App. 83, 96 (2009).
Mr. Koulatsos argues that the circuit court erred in declining
to find that Ms. Neofitou dissipated marital property and requests that we remand for further proceedings on this issue. We see no error in the circuit court’s conclusion that Mr. Koulatsos failed to prove dissipation, however. The party claiming dissipation has the initial burden of producing evidence to show dissipation and the ultimate burden of proving dissipation. Omayaka, 417 Md. at 656. After the party claiming dissipation has met their initial production burden, the party said to have dissipated the money (or whatever type of marital property at issue) must produce “sufficient evidence to show that the expenditures were appropriate.” Id. at 656–57 (quoting Jeffcoat v. Jeffcoat, 102 Md. App. 301, 311 (1994)). In determining whether expenditures are appropriate, as with other issues, the circuit court, in “its assessment of the credibility of witnesses, . . . was entitled to accept—or reject—all, part, or none of the testimony of any witness, whether that testimony was or was not contradicted or corroborated by any other evidence.” Omayaka, 417 Md. at 659 (concluding that “the finding that Appellee had testified truthfully was therefore not erroneous—clearly or otherwise— merely because the Circuit Court could have drawn different permissible inferences which might have been drawn from the evidence by another trier of the facts” (cleaned up)).
Although Mr. Koulatsos now points to transactions in the amounts of $100,000 in 2014, $9,500 in 2018, $9,000 in 2019, and $20,000 in 2020, and claims that the circuit court should have concluded that Ms. Neofitou dissipated these sums, the evidence showed, and the circuit court was entitled to find, otherwise. All of these transactions occurred before the parties’ separation. Notwithstanding Mr. Koulatsos’s claim that the marriage had already undergone an “irreconcilable breakdown” before the parties’ separation, the circuit court found otherwise, concluding that although they were on a “rocky path” and had been sleeping in separate bedrooms, the parties’ relationship had been, for the most part, peaceful coexistence before separation. In fact, immediately prior to their separation in March 2020, the parties continued to travel together.
As to the purpose of the transactions, Ms. Neofitou’s testimony suggested that they were for marital purposes. Thus, the $100,000 was transferred between bank accounts because of differing interest rates; the $9,500 and $9,000 checks were for cash on vacation; and the $20,000 was a routine transaction of the parties to pay a bill. With respect to Ms. Neofitou’s $166,000 post-separation gift to the parties’ children, Mr. Koulatsos even admitted that he and Ms. Neofitou frequently financially supported their children past the age of eighteen.
Considering Ms. Neofitou’s undisputed role in the marriage as the one who handled the parties’ finances and her explanations as to where the funds went, the circuit court’s decision to credit her testimony—rather than Mr. Koulatsos’s testimony that he was unaware of or did not authorize certain transactions—was not clear error. Accord Omayaka, 417 Md. at 659 (“Because the Circuit Court was entitled to find that Appellee had explained adequately where the funds that she had withdrawn from her bank accounts in 2005 went, we shall affirm the judgment at issue.”) Here, the circuit court explained that “the timing and circumstances of those transactions do not justify an award for dissipation” and that “the transactions were consistent with the way the parties handled their money.” After reviewing the
record, we see no error in this conclusion.
With respect to the monetary award of $2,258,646.13 to Ms. Neofitou, Mr. Koulatsos argues that the circuit court abused its discretion when weighing the factors under FL § 8-205(b). We find no such abuse of discretion and affirm the circuit court’s monetary award.
Here, the circuit court identified and valued the parties’ marital and non-marital property. Having completed the first two required steps for disposing of the parties’ marital property (including a possible monetary award), the circuit court then stated that it considered the relevant statutory factors under FL § 8-205(b). As summarized above, the circuit court considered Mr. Koulatsos’s monetary contributions and Ms. Neofitou’s non-monetary contributions to the household as a homemaker, which contributed to Mr. Koulatsos’s ability to build his career; the parties’ respective property interests; the economic circumstances of the parties, as illustrated by the significant disparity between their current incomes; the estrangement of the parties largely due to Mr. Koulatsos’s affair; the duration of the parties’ marriage; the ages of Mr. Koulatsos (59) and Ms. Neofitou (57); and the parties’ overall good health. Based on the record and in consideration of these factors, the court determined that it would be inequitable for the parties to retain the property as titled. As such, the circuit court made an award of$2,258,646.13 in order to rectify the inequity.
Citing to Alston v. Alston, 331 Md. 496 (1993), Mr. Koulatsos asserts that the circuit court did not give appropriate consideration to the eighth factor under FL § 8- 205(b), which refers to “how and when specific marital property . . . was acquired, including the effort expended by each party in accumulating the marital property[.]” Mr. Koulatsos contends that the checking and savings accounts, which total twice the monetary award challenged here, are earnings he acquired after the parties separated in March 2020. Citing Ware v. Ware, 131 Md. App. 207 (2000), as the “exception,” it is Mr. Koulatsos’s belief that “there ought be no monetary award of the post separation acquisition of [his] assets.” Alston and subsequent case law do not establish the firm rule that Mr. Koulatsos suggests.
In Alston, both parties worked outside of the home during most of the marriage, which lasted twenty-five years. Alston v. Alston, 85 Md. App. 176, 179–80 (1990). Over a year after the parties permanently separated but before they were divorced, Mr. Alston won the lottery, winning an annuity of over $1 million. Alston, 331 Md. at 501. The trial court made a monetary award to Mrs. Alston of fifty percent of the yearly net distribution on the annuity. Id. at 503. The Supreme Court reversed the trial court’s judgment as to the monetary award and remanded. Id. at 509. It held that, in light of the “particular circumstances” of the case, the factor under FL § 8-205(b)(8)—how and when specific martial property was acquired and the contribution each party made towards its acquisition—“should be given considerable weight.” Id. at 507.
However, Alston cautioned that “no hard and fast rule can be laid down” and that “each case must depend upon its own circumstances to insure that equity be accomplished[.]” Id. In a case decided three years after Alston, we further explained that “Alston does not state that property acquired after separation should be taken out of the marital property pool, only that the
timing of acquisition must be considered.” Skrabak v. Skrabak, 108 Md. App. 633, 656 (1996). There, we held that the trial court did not abuse its discretion when, after giving appropriate consideration to FL § 8-205(b)(8), it made a monetary award of after-acquired property. Id. at 655–56 (noting that the monetary award was neither “grossly disproportionate” nor “an equal division of the after-acquired property”).
Four years after Skrabak, we decided Ware. The Wares’ marriage was short-lived: they separated after three-and-a-half years of marriage. Ware, 131 Md. App. at 211. Mr. Ware won the lottery shortly after the parties’ separation, winning an annuity of $17 million. Id. The trial court noted certain factual differences from Alston, including that the Wares continued to have sexual relations and stayed in close contact after separating. Id. Referencing Alston, the trial court in Ware explicitly recognized that the eighth factor, FL § 8-205(b)(8), was entitled to greater weight than the other factors. Id. at 223. In consideration of this factor, the trial court awarded Mrs. Ware ten percent of the lottery annuity payments to be received by Mr. Ware. Id. at 224.
We again cautioned in Ware against distilling a “more sweeping holding” from the specific facts of Alston. Id. at 215. Instead, the “more moderate holding” we extracted from Alston was that the trial court in Alston abused its discretion by failing “to give proper weight, in a situation such as this involving afteracquired gambling winnings, to the so-called eighth factor” and “mechanistically fail[ing] to distinguish an ‘equitable’ distribution from an ‘equal’ distribution.” Id. at 218. As such, it was not an abuse of discretion for the trial court in Ware to have made a monetary award of after-acquired property. Id. at 224. Here, the parties’ circumstances are different from those in both Alston and Ware. Ms. Neofitou stopped working shortly after the parties married because they agreed that Ms. Neofitou would be the “quintessential” homemaker. The circuit court recognized that Ms. Neofitou’s contributions to the household during the parties’ long-term, nearly thirty- year marriage “enabled [Mr. Koulatsos] to advance in his career[,]” which “continued on an overall upward trend” after the parties’ separation. In other words, the circuit court viewed Mr. Koulatsos’s continued success as having been made possible by Ms. Neofitou’s marital efforts. By contrast, the purchase of lottery tickets in Alston and Ware did not reflect long-term contributions of former spouses. Further, Ms. Neofitou’s position as someone previously out of the workforce for almost thirty years during a long-term marriage is distinguishable from the circumstances of the former spouses in Alston and Ware.
The circuit court detailed how the FL § 8-205(b) factors weighed in favor of a monetary award to Ms. Neofitou. Specifically, the circuit court highlighted Ms. Neofitou’s contributions to the well-being of the household over multiple decades, the difference between the value of the parties’ property interests as titled that would have resulted in Mr. Koulatsos retaining significantly more assets, the extreme income disparity between the parties at the time of the award, the long-term nature of the marriage, and the parties’ older age and general good health as these relate to the need and ability to earn and save for retirement.
We read the circuit court’s discussion of the significant non-monetary contributions that Ms. Neofitou made that
enabled Mr. Koulatsos’s past and present success to mean that it considered, but did not find determinative, the fact that Mr. Koulatsos’s savings and checking accounts included postseparation earnings. Although the circuit court could have laid out its analysis more explicitly, as the trial courts did in Skrabak and Ware, doing so was not necessary here. While the trial court is required to consider the relevant factors, it is not required that it “go through a detailed check list of the statutory factors, specifically referring to each[.]” Malin, 153 Md. App. at 429 (cleaned up). We presume that judges know the law and properly apply it. Wasyluszko v. Wasyluszko, 250 Md. App. 263, 284 (2021) (explaining that such a presumption, in the context of FL § 8-205(b), is “not rebutted by mere silence”). So long as the trial court states that the statutory factors were considered, we do not require that each factor under FL § 8-205(b) be enunciated in a trial court’s opinion. Malin, 153 Md. App. at 429.
Here, the circuit court stated that it had “reviewed and considered the testimony and other evidence presented and the relevant factors to determine how the property at issue should be distributed.” It then went on to detail its analysis of the factors in light of the evidence. As to Mr. Koulatsos’s post-separation savings, the trial court recognized that Mr. Koulatsos had the ability to save while Ms. Neofitou did not. Specifically, the trial court found that Mr. Koulatsos’s post-separation savings were accumulated from earnings, which were substantial enough to allow Mr. Koulatsos to pay alimony, support his girlfriend, and save. For Ms. Neofitou, however, “her earnings are only a small fraction of what [Mr. Koulatsos] earns, which prevents her from having the same lifestyle as when the parties were together. It also prevents her from being able to contribute to savings.”
Under these circumstances, we see no abuse of discretion in the trial court’s decision to make a $2,258,646.13 monetary award to Ms. Neofitou.
II. Indefinite Alimony
Mr. Koulatsos argues that the circuit court abused its discretion with respect to both the amount and duration of alimony awarded to Ms. Neofitou under FL § 11-106. Mr. Koulatsos’s first contention is that the circuit court did not properly consider Ms. Neofitou’s income and expenses, including her potential for earning investment income. Second, Mr. Koulatsos argues the circuit court’s decision was “not within the statutory and case law requirement of disparity of lifestyle,” alleging that the circuit court “equates the statutory requirement to disparity of income.” We reject both arguments and affirm the circuit court’s order of indefinite alimony in the amount of $20,000 per month.
In determining whether to make an alimony award, trial courts must consider twelve statutory factors:
(1) the ability of the party seeking alimony to be wholly or partly self- supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well- being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health - General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
FL § 11-106(b).17 Although a trial court “must clearly indicate that it has considered all the factors[,]” it “need not use formulaic language or articulate every reason for its decision with respect to each factor.” Brewer v. Brewer, 156 Md. App. 77, 99 (2004).
In its written decision, the circuit court referred to each of the relevant statutory factors listed in FL § 11-106(b) in discussing the basis for the amount and duration of the alimony award. As summarized above, the circuit court considered: (1) Ms. Neofitou’s ability to be partly self-supporting; (2) her lack of education and training, which would make it impossible to find employment remotely near Mr. Koulatsos’s earning level, even with time; (3) the affluent lifestyle the parties established during their marriage; (4) the parties’ nearly thirty-year marriage; (5) Mr. Koulatsos’s significant monetary contributions and Ms. Neofitou’s non-monetary contributions to the household as a homemaker; (6) Mr. Koulatsos’s decision to leave the marriage, in part due to his having an affair; (7) the parties being in their late fifties; (8) the parties both generally being in good health; (9) Mr. Koulatsos’s ability to meet both his needs and Ms. Neofitou’s needs; (10) the lack of any agreement between the parties about alimony; and (11) Ms. Neofitou’s financial resources being insufficient to meet her needs, and Mr. Koulatsos’s significant remaining financial resources after meeting his needs.18
Because the statutory purpose of alimony is to rehabilitate the economically dependent spouse, Maryland favors alimony for a fixed term. Goicochea v. Goicochea, 256 Md. App. 329, 357 (2022). However, the alimony statute recognizes that indefinite alimony is appropriate in certain cases. Id. As relevant to this appeal, a trial court may award indefinite alimony if it finds that “even after the party seeking alimony will have made as much
progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.” FL § 11-106(c)(2). A trial court’s determination of “[w]hether there will be a post-divorce unconscionable disparity in the parties’ standards of living usually begins with an examination of their respective earning capacities.” Whittington v. Whittington, 172 Md. App. 317, 338 (2007) (noting, however, that “a mere difference in earnings of spouses, even if it is substantial . . . does not automatically establish an ‘unconscionable disparity’ in standards of living”) (cleaned up, emphasis in original).
We see no reason to disturb the circuit court’s fact-intensive finding that the parties’ respective standards of living will be unconscionably disparate for the foreseeable future. The circuit court appropriately considered the financial needs and resources of Ms. Neofitou. The circuit court summarized the applicable case law for granting indefinite alimony and compared Ms. Neofitou’s approximately $33,280 in annual income to Mr. Koulatsos’s approximately $3.5 million in annual income.19 The circuit court explained that even if Ms. Neofitou were to further progress towards becoming self-supporting and eventually earn $58,000 per year (citing the testimony of Mr. Koulatsos’s vocational rehabilitation expert), this would still represent less than two percent of the parties’ combined income. Contrary to Mr. Koulatsos’s contention and in contrast with Rosenberg v. Rosenberg, 64 Md. App. 487 (1985), upon which Mr. Koulatsos relies, the circuit court here considered the testimony of Mr. Koulatsos’s financial expert about Ms. Neofitou’s ability to increase her income through an investment strategy. However, the circuit court pointed out that such an investment strategy was one that the parties themselves rejected while married due to its risks.
Mr. Koulatsos also cites to Turner v. Turner, 147 Md. App. 350 (2002), to support this argument. It is worth noting that we held in Turner that the trial court abused its discretion in awarding only $2,000 a month of indefinite alimony in light of the circumstances. Id. at 393. Among other issues, the trial court in Turner did not make any findings with respect to the amount of anticipated investment earnings when determining the monthly alimony award and how this amount might be affected by the needs of the party seeking alimony. Id. at 395–96. When discussing investment income more generally in Turner, we also noted that the amount of money that appellant can realistically expect to obtain from investments is by no means certain. Recent times have underscored the difficulty of predicting a yield on investments, and the challenges of relying on the stock market as a supplement to support. Indeed, the turbulent state of the stock market highlights the unpredictability of potential income from such investments, as well as the risks associated with them. Even cautious investors would not have anticipated that investments in companies like Enron or WorldCom could evaporate overnight.
Id. at 396. Here, the circuit court considered the potential for investment income, but also appropriately considered the parties’ view about the risks. This would include Ms.Neofitou’s concern about whether interest rates would stay the same. Further, the circuit court discounted the financial expert’s testimony because it did not focus on the appropriate statutory
consideration, which was whether the parties’ respective post-divorce standards of living would be unconscionably disparate. To this point, we note that the retirement capital analyses estimated Ms. Neofitou’s expenses at $3,500, $5,000, or $7,000 per month, when her financial statement listed her total monthly expenses as $11,120. Given that the financial expert’s testimony was premised on estimates that were inconsistent with Ms. Neofitou’s financial statement, we see no abuse of discretion in the trial court’s declining to rely on the financial expert’s testimony.
Contrary to Mr. Koulatsos’s argument, the circuit court also made clear that its finding of unconscionable disparity and decision to grant indefinite alimony was “not only about the differential between [the parties’] respective incomes.” The circuit court also made specific reference to “comparing the overall standard [of] living they had when they were married.” The circuit court even acknowledged that, even if Ms. Neofitou’s “monthly expenses are closer to what [Mr. Koulatsos] claims they are or should be, her financial circumstances still support an award of indefinite alimony.” In fact, the circuit court rejected Ms. Neofitou’s request for alimony in the amount of $30,000 per month, explaining that this “figure was more than necessary to prevent unconscionable economic disparity.” The circuit court explained that it considered “the parties’ standard of living before they separated, their respective financial circumstances and their future financial prospects” in reaching the amount of $20,000 per month. This consideration appropriately included, in addition to Ms. Neofitou’s expenses, her ability to save and build a “nest egg” in light of the parties’ previous ability to accumulate substantial savings while married. Cf. Boemio v. Boemio, 414 Md. 118, 130 (2010) (“Here, for example, in light of the pattern of savings demonstrated during the marriage, the Circuit Court was free to decide that it was fair and equitable to award [the respondent] an amount of alimony higher than what would suffice to pay her existing monthly bills.”).
As such, the circuit court did not abuse its discretion in awarding Ms. Neofitou indefinite alimony in this amount.
III. Attorney’s Fees
With respect to the circuit court’s awarding of attorney’s fees in the amount of $188,667.22, Mr. Koulatsos reiterates his argument that the circuit court gave inadequate consideration to Ms. Neofitou’s potential investment income “and the effect the income would have on the award of counsel fees.” We have addressed and rejected this argument above with respect to the alimony award, and therefore affirm the circuit court’s award of attorney’s fees.
FL § 8-214 provides that the court “may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.”
FL § 8-214(b). However, the court must first consider, before ordering such a payment of attorney’s fees: “(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” FL § 8-214(c).
Here, the circuit court properly exercised its discretion under FL § 8-214(b) to award attorney’s fees to Ms. Neofitou by
considering the two factors listed under FL § 8214(c). The circuit court first found that the “differences between the parties’ respective financial resources and the parties’ respective needs support awarding her legal fees.” We have previously summarized above these disparities, which were discussed at length throughout the circuit court’s twentyone-page opinion. Second, the circuit court found that Ms. Neofitou “had a substantial justification for pursuing relief in this case, as demonstrated by the award of indefinite alimony and a substantial marital award.”
In an attempt to overcome this conclusion, Mr. Koulatsos
cites to language about the concept of a “privileged suitor” from Ridgeway v. Ridgeway, 171 Md. App. 373 (2006), to argue that Ms. Neofitou does not fit this description as she is “not without means, nor is she destitute of pecuniary means.” However, the relevant considerations upon review are the two factors listed under FL § 8-214(c) (“(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding”), which the circuit court properly considered here in awarding fees.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The circuit court granted Ms. Koulatsos’s request to change her name to Ms. Neofitou. Accordingly, we refer to her as such in this opinion.
2 Mr. Koulatsos phrased his questions as follows:
i) Was the monetary award issued in error or an abuse of discretion?
ii) Is the amount and duration of the alimony award an abuse of discretion?
iii) Was the award of counsel fees excessive?
iv) Was it an abuse of discretion to deny Husband’s claim of Wife’s dissipation of marital assets?
3 This Court previously addressed this issue with an order to show cause on June 18, 2024, requiring Mr. Koulatsos to explain in writing why the appeal should not be dismissed as untimely. Mr. Koulatsos timely submitted a response to this order on June 27, 2024, and Ms. Neofitou subsequently filed a reply. On July 15, 2024, this Court ruled that the order to show cause was satisfied. Because the ruling gave Ms. Neofitou permission to re-raise the arguments in favor of dismissal in her brief, we address—but reject—these arguments here.
4 This rule provides, in pertinent part:
In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment.
Md. Rule 2-534.
5 “MDEC” is the Maryland Judiciary’s “system of electronic filing and case management[.]” Md. Rule 20-101(m).
6 Rule 2-311 provides, in pertinent part:
(a) Generally. An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, and shall set forth the relief or order sought.
(c) Statement of Grounds and Authorities; Exhibits. A written motion and a response to a motion shall state with particularity the grounds and the authorities in support of each ground. A party shall attach as an exhibit to a written motion or response any document that the party wishes the court to consider in ruling on the motion or response unless the document is adopted by reference as permitted by Rule 2-303(d) or set forth as permitted by Rule 2-432(b).
Md. Rule 2-311(a) & (c).
7 The parties’ joint statement of marital and non-marital property was admitted as a joint exhibit. See Md. Rule 9-207. The amount of marital property totaled approximately $8.1 million dollars. The parties agreed that Ms. Neofitou owned non- marital property totaling approximately $750,000 and that Mr. Koulatsos owned approximately $1.3 million in non-marital property. With respect to certain other property, the parties were not in agreement as to whether it was marital or non-marital or its value. As to property about which the parties disagreed as to its marital or non-marital character, the parties listed several items. Relevant to this appeal is Mr. Koulatsos’s assertion on the joint statement that Ms. Neofitou dissipated marital assets.
8 Because Ms. Neofitou sought alimony from Mr. Koulatsos and the parties did not reach an agreement as to alimony, she was required to file a “long form” financial statement, which she did. See Md. Rule 9-202(e) (requiring that “[i]f spousal support is claimed by a party and either party alleges that no agreement regarding support exists, each party shall file a current financial statement in substantially the form set forth in Rule 9-203 (a)”).
9 During Mr. Shedlin’s testimony, he initially misspoke with respect to the estimated amount that an assistant property manager would make, testifying that “for a -- a property manager -- excuse me -- would be approximately 58,000 right now.” He immediately corrected this statement by saying, “[e]xcuse me, I -- I came in too high on the -- the -- assistant property manager, I apologize. It’d be between approximately38,000 and 42,000.” We note this to provide context for why the circuit court cited the $58,000 figure in its opinion.
10 These details appeared in a report that Mr. Hallengren had prepared. The report was admitted into evidence. Twentyfour of these accounts correspond with those referenced in the circuit court’s opinion as savings and checking accounts to be
divided. There are two accounts listed in this category in the opinion that do not directly correspond with any accounts listed in the exhibit; the value of these two accounts (one of which is closed) is approximately $1,200. The circuit court divided the total value of the savings and checking accounts ($4,497,462) equally between the parties. This makes up the substantial part of the monetary award of $2,258,646.13 at issue on appeal.
11 The circuit court’s order also addressed several other matters not relevant to this appeal (such as the distribution of the parties’ other financial assets and personal property, including the permanent seat licenses for the Baltimore Ravens, as well as Ms. Neofitou’s name change).
12 The parties’ joint statement of marital and non-marital property notes that it is Mr. Koulatsos’s position that, with the exception of one checking account (with a value of about $1,200 as of February 2023), these savings and checking accounts “indicate post separation earnings[.]”
13 The circuit court explained that it was awarding half of the value of the checking and savings accounts listed in the table, “plus $9,915.13 due from an account [Mr. Koulatsos] liquidated for a sum of $2,258,646.13.”
14 The circuit court also acknowledged the calculation presented by Ms. Neofitou that, based on the Kaufman Alimony Guidelines, the suggested alimony would be $62,996 per month. However, the circuit court determined that such an amount “is much higher than necessary to prevent unconscionable economic disparity.”
15 FL § 8-214 provides, in pertinent part:
Order to pay
(b) At any point in a proceeding under this subtitle, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.
Required considerations
(c) Before ordering the payment, the court shall consider:
(1) the financial resources and financial needs of both parties; and
(2) whether there was substantial justification for prosecuting or defending the proceeding.
Party to pay
(d) Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party the reasonable and necessary expense of prosecuting or defending the proceeding.
FL § 8-214(a)–(d).
16 The term “marital property” refers to property acquired by one or both parties during the marriage, regardless of how the property is titled. FL § 8-201(e)(1). However, property is not marital if it was:
(i) acquired before the marriage;
(ii) acquired by inheritance or gift from a third party; (iii) excluded by valid agreement; or
(iv) directly traceable to any of these sources.
FL § 8-201(e)(3).
17 We recognize, of course, that not all of the above factors will always be relevant to the determination of modified alimony. See Shapiro v. Shapiro, 346 Md. 648, 665 (1997); see also Blaine v. Blaine, 336 Md. 49, 74 (1994).
18 The circuit court did not address the twelfth factor, which is not relevant here as Mr. Koulatsos is not a resident of a related institution as defined in FL § 19-301.
19 In its opinion, the circuit court cited eight reported Maryland appellate decisions about indefinite alimony, including Solomon v. Solomon, 383 Md. 176 (2004). In Solomon, the Supreme Court explained that:
There are several cases in which Maryland appellate courts found unconscionable disparity based on the relative percentage the dependent spouse’s income was of the other spouse’s income. See Tracey, 328 Md. at 393, 614 A.2d at 597 (28 percent); Caldwell v. Caldwell, 103 Md. App. 452, 464, 653 A.2d 994, 999 (1995) (43 percent); Blaine v. Blaine, 97 Md. App. 689, 708, 632 A.2d 191, 201 (1993), aff’d on other grounds, 336 Md. 49, 646 A.2d 413 (1994) (23 percent); Rock v. Rock, 86 Md. App. 598, 613, 587 A.2d 1133, 1140 (1991) (20–30 percent); Broseus v. Broseus, 82 Md. App. 183, 186, 570 A.2d 874, 880 (1990) (46 percent); Bricker v. Bricker, 78 Md. App.
Although we do not adopt a standard that unconscionable disparity exists based on a particular percentage comparison of gross or net income, the relative percentages in these cases offer some guidance here in assessing whether the amount of the indefinite alimony award alleviated adequately the unconscionably disparate situation found to exist in the present case.
Solomon, 383 Md. at 198. As the circuit court noted here, the relative percentage Ms. Neofitou’s income is of Mr. Koulatsos’s income —even imputing a higher income to her based on the expert testimony presented by Mr. Koulatsos—was less than two percent. This represents a significantly greater disparity than all the cases listed above.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Baltimore County Circuit Court’s child support order. It erred by not including mother’s work-related childcare expenses in its calculation of child support.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
per month. She explained that she needs childcare in order to work. Since the beginning of the year, while she is at work, Child has been attending Celebree School (“Celebree”), a daycare center near her
home, which costs $466 per week. Mother moved into evidence a tuition and fee schedule from Celebree listing its tuition rates, from infant care to school-age before and after care, and a statement verifying that she had paid $466 for one week of childcare. The tuition and fee schedule showed that tuition would decrease to $373 per week upon Child’s turning two years old in May 2024.
This is an appeal from a custody and child support order entered by the Circuit Court for Baltimore County in a suit between Amber Clemmons (“Mother”), the appellant, and JeanCharles Constant (“Father”), the appellee, concerning their child (“Child”). Mother contends the circuit court erred by not including her work-related childcare expenses in its calculation of child support. Because we agree, we shall vacate the order with respect to child support only and remand for further proceedings on that issue.
FACTS AND PROCEEDINGS
Mother lives in Baltimore County, Maryland, and Father lives in Delaware. The parties were in a relationship for just over a year when, in May of 2022, Mother gave birth to Child. Father spent the first few weeks after Child’s birth at Mother’s home. In June of 2022, he returned to Delaware. Child remained with Mother.
In September of 2022, Mother filed a complaint seeking sole legal and primary physical custody of Child and child support. Father filed a counterclaim for joint legal and primary physical custody of Child and for child support. On July 27, 2023, the court entered a pendente lite order granting primary physical custody to Mother, establishing a visitation schedule for Father, and ordering Father to pay $1,727 per month in child support.
A merits hearing was held on January 29 and 30, 2024. Mother testified that she works roughly thirty-six hours per week as a Literacy Academic Content Liaison with the Baltimore City Public Schools, earning approximately $12,000
At the time of the hearing, Father was the CEO of Universal Health Services and ran a behavioral health hospital in Dover, Delaware.1 In answer to the question, “Who would be watching [Child]” while he was at work, Father testified that when Child was in his custody and he was working, his parents “would be willing to watch” Child, and “in the event that that couldn’t happen, there are some daycares that are around[.]”2 He added that there is a Celebree in the area where he lives and another daycare center as well. Father did not introduce any evidence about their cost or that he had incurred daycare expenses for Child. Father was earning approximately $16,000 per month.
On February 8, 2024, the court held a hearing over Zoom in which it ruled orally on the record. The court decided that Mother and Father would share legal and physical custody, with Child being with each on a one week on/one week off schedule. Using the parties’ incomes and adding Mother’s payment for health insurance for Child, the court calculated Father’s child support obligation to be $407 per month. The court stated in its oral ruling that it “did not include childcare” as an expense in determining child support because: [N]umber one, the cost of it is going to change because [Child] is going to be with his dad every other week and, number two, it’s going to change when [Child] turns 2, which is coming up in a few months. So, the parties are responsible for childcare expenses when [Child] is in their care and custody.
The court’s custody and support order was entered on February 8, 2024. Mother filed a motion for reconsideration, arguing that the court erred by not including daycare expenses in determining child support. After the court denied that motion, she noted this timely appeal.
Mother challenges the court’s decisions not to include the cost of work-related childcare in its child support calculation and to deny her motion for reconsideration.
STANDARD OF REVIEW
Generally, “child support orders are within the sound discretion of the trial court.” Reichert v. Hornbeck, 210 Md. App. 282, 316 (2013). Accordingly, “[w]e will not disturb the trial court’s discretionary determination as to an appropriate award of child support absent legal error or abuse of discretion.” Smith v. Freeman, 149 Md. App. 1, 20 (2002). The court abuses its discretion when “‘no reasonable person would take the view adopted by the [trial] court,’ or when the court acts ‘without reference to any guiding rules or principles.’” In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997) (internal citations omitted) (quoting North v. North, 102 Md. App. 1, 13 (1994)). In addition, a court’s ruling on a motion for reconsideration is reviewed for abuse of discretion. Sydnor v. Hathaway, 228 Md. App. 691, 708 (2016).
DISCUSSION
Mother contends the circuit court abused its discretion by not including her work- related childcare expenses in determining child support. Father responds that the court lacked evidence regarding Mother’s childcare expenses and properly omitted such expenses after awarding the parties joint physical custody on a 50/50 basis.
The Maryland Child Support Guidelines (“Guidelines”) are set forth at Md. Code (1984, 2019 Repl. Vol.), §§ 12-201–204 of the Family Law Article (“FL”). Use of the Guidelines is mandatory when the parties’ combined adjusted monthly actual income is $30,000 or less. FL § 12-202(a)(1) (“[I]n any proceeding to establish or modify child support, whether pendente lite or permanent, the court shall use the child support guidelines set forth in this subtitle.”); see also Allred v. Allred, 130 Md. App. 13, 17-18 (2000) (“It is mandatory that the statutory guidelines be used. No deviation from the cookbook methodology may be made.” (cleaned up)). In this case, the parties’ combined adjusted monthly actual income was less than $30,000, so use of the Guidelines was required.
Application of the Guidelines begins with a determination of the basic child support obligation, which is calculated “in accordance with the schedule of basic child support obligations in subsection (e) of this section.” FL § 12-204(a)(1). Then, the “actual child care expenses incurred on behalf of a child due to employment or job search of either parent shall be added to the basic obligation and shall be divided between the parents in proportion to their adjusted actual incomes.” FL § 12-204(g) (1). The use of the word “shall” means that including actual childcare expenses in the child support determination is not discretionary. Chimes v. Michael, 131 Md. App. 271, 292-93 (2000) (“Because the Legislature used mandatory language and distinguished child care expenses from basic support obligations, we hold that childcare expenses always fall outside of the chancellor’s discretion[.]” (footnote omitted)).
Childcare expenses are “determined by actual family experience, unless the court determines that the actual family experience is not in the best interest of the child[.]” FL § 12-204(g) (2)(i). Alternatively, “if there is no actual family experience or if the court determines that actual family experience is not in
the best interest of the child[,]” childcare expenses either are the amount “required to provide quality care from a licensed source” or, if the obligee chooses child care that costs less than that required to provide quality care from a licensed source, “the actual cost of the child care expense.” FL § 12-204(g)(2)(ii). Finally, “[t]here is a rebuttable presumption that the amount of child support which would result from the application of the child support guidelines . . . is the correct amount of child support to be awarded.” FL § 12-202(a)(2)(i). “If the court determines that the application of the guidelines would be unjust or inappropriate in a particular case, the court shall make a written finding or specific finding on the record stating the reasons for departing from the guidelines.” FL § 12-202(a)(2)(v) (1). That finding must state:
A. the amount of child support that would have been required under the guidelines;
B. how the order varies from the guidelines;
C. how the finding serves the best interests of the child; and
D. in cases in which items of value are conveyed instead of a portion of the support presumed under the guidelines, the estimated value of the items conveyed.
FL § 12-202(a)(2)(v)(2).
Here, the court granted the parties shared physical custody on an equal basis. The evidence showed the actual family experience was when Child was in Mother’s physical custody, he attended daycare at Celebree and for Mother to work, it was necessary for Child to attend daycare.
Mother’s evidence about the cost of daycare at Celebree was undisputed. It showed Celebree cost $466 per week and that in May 2024, when Child turned two years old, the cost would change to $373 per week. There was no evidence that attending daycare at Celebree was contrary to Child’s best interest. Mother testified that she was satisfied with Celebree; it was safe, the program was “tailored to [Child’s] needs and his development[,]” and Child was adjusting well there. Father did not dispute that attending Celebree was in Child’s best interest and even identified a Celebree in Delaware as an option for Child while in Father’s custody, should Father’s parents be unavailable. The court did not find that Child’s attending daycare was not necessary for Mother to work; nor did it find that attending Celebree was contrary to Child’s best interest. On the contrary, the court seemed to have specifically contemplated Child’s continued attendance at Celebree when it noted that Child’s tuition is “going to change when [Child] turns 2” – a fact established by the Celebree tuition and fee schedule Mother introduced in evidence.
Father argues that the court’s decision not to include any work-related childcare expenses for the time Mother was at work in calculating child support “was necessarily a finding that continuing at Celebree . . . every week was not in [Child’s] best interests.” (Emphasis omitted.) We disagree. This position is at odds with the court’s reasoning as stated in the record. The court
gave two reasons for not including childcare expenses: physical custody was going to be shared, one week on, one week off; and in a few months the cost of childcare at Celebree would be changing (actually decreasing). Neither reason constituted a finding that attending daycare at Celebree while Mother was at work was not in Child’s best interest.3
The evidence clearly established that Mother was working full-time and needed daycare for Child while she was at work; and, Mother enrolled Child in Celebree for daycare and he had attended there. She introduced evidence of the cost of daycare in January 2024 and beginning in May 2024, when Child would be two years old. To the extent there also was evidence that Father was working full-time, and therefore needed daycare for Child, Father’s evidence was that his parents would care for Child during that time. If they were not available, he would use a daycare center, perhaps a Celebree in Delaware, but that had not happened. Father did not introduce evidence of the cost of daycare he might incur.
On this evidence, the court erred by eliminating Mother’s proven work-related childcare expenses from its calculation of child support. See FL § 12-204(g)(1); Krikstan v. Krikstan, 90 Md. App. 462, 471 (1992) (noting that in calculating child support, “[i]t was error for the chancellor to eliminate child care”). Moreover, by doing so, the court deviated from the Guidelines without acknowledging that they deviated, without
stating what the amount of child support would have been required under the Guidelines, and, most importantly, without explaining how it was in Child’s best interest to deviate from the Guidelines. See FL § 12-202(a)(2)(v)(2).
We recognize that, notwithstanding that the parties do not live near each other, the court exercised its discretion to split physical custody of Child between Mother and Father equally on a week on/week off basis. Evidence showed that the driving distance between the parents’ homes is almost two hours. Unlike the vast majority of cases where separated or divorced parents live close enough to each other that their children can attend a single daycare or school, that is not possible in this case. There does not appear to have been any inquiry into whether Celebree (or other daycare centers) where Mother lives accept children on a part time basis, that is, one week on, one week off. That is important because Mother needs daycare for Child in order to work. It is not sufficient, nor is it fair or logical, for Mother to bear these daycare expenses alone, without their being added into the child support calculation.
Accordingly, the child support determination shall be vacated and the case shall be remanded for further proceedings not inconsistent with this opinion. On remand, the court has discretion to hear and consider additional evidence on the issue of work-related daycare expenses.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY VACATED WITH RESPECT TO CHILD SUPPORT ONLY; CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; JUDGMENT OTHERWISE AFFIRMED. COSTS TO BE PAID BY THE APPELLEE.
FOOTNOTES
1 Docket entries show that, after the notice of appeal was filed, Father filed a motion for modification based on his having changed employment.
2 Father actually testified that his grandparents (not parents) would be willing to watch Child, but that appears to have been a misstatement on his part.
3 Even if the court’s omitting work-related childcare
expenses from its calculation of child support was tantamount to a finding that attending daycare at Celebree was not in Child’s best interest, which it was not, the court erred by not including any daycare expense relative to Mother’s work. Under FL § 12-204(g)(2)(ii), upon a finding that Celebree was not in Child’s best interest, the court was required to include childcare expenses in an amount of either “the level required to provide quality care from a licensed source” or, if Mother had chosen quality licensed childcare at a lower amount, the actual cost of that childcare. The court did neither.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s award of sole legal and primary physical custody of the minor child, whom the court had adjudicated as a child in need of assistance, to father. There was an existing custody order entered by a court in Texas. As such, before issuing what amounted to a modification of the Texas court’s custody order, the juvenile court was required to “communicate with the court [in Texas] to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
violation of the custody order, asserting that she was escaping from domestic violence. In September 2023, J.E. and his halfbrother R.P. came to the attention of the Montgomery County Department of Health and Human Services (“the Department”) after Mother left the children alone in the hotel in which they had been living.3 The Department removed the children from Mother’s custody, placed them in shelter care, and filed a CINA petition in relation to both children. In October 2023, the juvenile court declared J.E. to be a CINA and imposed conditions to be met by Father before it would place J.E. with him in Texas. By November 2023, Father had completed all but one of those conditions, and his completion of the one remaining condition was delayed for reasons outside of his control. In December 2023, based on the Department’s recommendation and Father’s completion of almost all of his court-ordered services, the juvenile court ordered that J.E. be placed with Father in Texas under an Order of Protective Supervision.
In this second appeal taken by appellant T.S. (“Mother”) in this matter, we are asked to determine whether the Circuit Court for Montgomery County, sitting as a juvenile court, lacked subject matter jurisdiction to grant J.E., Sr., (“Father”) sole legal and primary physical custody of J.E., Jr., (“J.E.”), whom the court had adjudicated CINA,1 when there was an existing custody order entered by a court in Texas. For the reasons that follow, we conclude that the juvenile court failed to comply with the procedures outlined in the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) before issuing its custody order. We, therefore, vacate the juvenile court’s order and remand the matter to that court to comply with the procedural requirements of the UCCJEA before entering a new custody order, if appropriate.2
FACTS AND LEGAL PROCEEDINGS
In an Order entered in August of 2022, a Harris County, Texas, court awarded primary physical custody of J.E. to Mother and joint legal custody of J.E. to Mother and Father. The custody order gave Mother the right to “designate the primary residence of the child within Harris County, Texas and counties contiguous thereto and Montgomery County, Texas[.]” Each parent was prohibited from interfering with the other parent’s time of possession with J.E. and was required to give notice to the other of, among other things, an intended change in address.
In June 2023, Mother moved J.E. from Texas to Maryland in
Mother noted a timely appeal of the juvenile court’s decision permitting J.E. to be moved to Texas under Father’s care. In an unreported opinion, this Court concluded that the juvenile court had not made an explicit finding that J.E. would not be subject to further abuse or neglect if placed in Father’s custody, as required by FL § 9-101. We remanded the matter to the juvenile court to make that determination on the record and otherwise affirmed the juvenile court’s ruling. See In re: J.E., Case No. 1980, Sept. Term, 2023 (filed July 9, 2024).
Ahead of a review hearing to be held in July of 2024, the Department filed a report recommending that J.E. be released from the juvenile court’s jurisdiction and that his commitment to the Department be rescinded. The Department further recommended that Mother, who had been non-compliant “with all court ordered services and case plan” and had attended only eight of 39 permitted virtual visits with J.E., be granted oncemonthly supervised visitation with J.E. and ordered to stay away from Father’s home and from J.E.’s school and daycare facility.
At the review hearing, the Department maintained its recommendation that the case be closed. The child’s attorney and Father’s attorney both agreed with the Department’s recommendation. Mother’s attorney disagreed, however, arguing that there was a CINA finding that Father and Mother had both been parties to domestic violence in Texas, that there was an existing Texas custody order granting physical custody of J.E. to Mother, and that no one had been supervising Father and J.E. in Texas to verify that Father’s positive representations to the Department were accurate.4
At the conclusion of the hearing, the juvenile court explicitly
found that: (1) Father was compliant with his case plan and had completed all court-ordered services; (2) there was no likelihood of abuse or neglect of J.E. by Father; (3) J.E. was safe with Father; and (4) it was in J.E.’s best interest to be with Father. The juvenile court further found that Mother had: (1) not been compliant with court-ordered services; (2) participated in only eight visits with J.E. of 39 offered by the Department; and (3) made no progress toward mitigating the causes necessitating the court’s intervention. The juvenile court declared that J.E. was no longer a CINA, placed the child in Father’s physical and legal custody, terminated its jurisdiction over the matter, and closed the case. The juvenile court’s July 25, 2024, written order further provided that: (1) Mother would be permitted once-monthly supervised visitation with J.E. at a Texas visitation center; (2) Mother may not call, email, or text Father; and (3) Mother must stay away from Father’s home and work and J.E.’s daycare and school. The juvenile court entered a separate custody order granting Father primary physical and sole legal custody of J.E. the same day.
Mother noted a timely appeal from the juvenile court’s orders.
DISCUSSION
On appeal, Mother contends that the juvenile court lacked subject matter jurisdiction to issue a permanent custody order because Texas, not Maryland, was J.E.’s home State and the Texas custody order remained in effect and was entitled to enforcement under the UCCJEA unless the Texas court, after conference with the juvenile court, relinquished its jurisdiction. Because no such conference or relinquishment had occurred, Mother asserts and the Department concedes, the juvenile court’s custody order must be vacated. We agree. Nonetheless, as the Department points out, although the juvenile court lacked jurisdiction to modify permanently the Texas custody order, that jurisdictional defect can be cured on remand if the juvenile court follows the procedures outlined in the UCCJEA.
STANDARD OF REVIEW
“Whether the [juvenile] court correctly asserted jurisdiction is an issue of statutory interpretation that we review de novo to determine whether [it] was legally correct.” Cabrera v. Mercado, 230 Md. App. 37, 80 (2016). The issue of a lack of subject matter jurisdiction can be raised at any time, even for the first time on appeal. Lewis v. State, 229 Md. App. 86, 101 (2016).
ANALYSIS
The UCCJEA—enacted in Maryland in 2004 and currently codified at § 9.5-101 et seq. of the Family Law Article (“FL”)— dictates which State has subject matter jurisdiction over a child custody dispute that spans multiple States. FL § 9.5-101 et seq. “This Court has recognized that ‘[t]he UCCJEA, governing custody and visitation, … w[as] established to provide systematic and harmonized approaches to urgent family issues in a world in which parents and guardians, who choose to
live apart, increasingly live in different [S]tates and nations.’” Cabrera, 230 Md. App. at 73-74 (quoting Friedetzky v. Hsia, 223 Md. App. 723, 726-27 (2015)). One of the primary goals of the UCCJEA is to establish a uniform jurisdictional standard to prevent jurisdictional conflicts between Maryland courts and courts of other States with respect to custody determinations regarding a child who has been relocated either to or from Maryland. Pilkington v. Pilkington, 230 Md. App. 561,578-79 (2016).
“The [UCCJEA] prohibits concurrent jurisdiction between two [S]tates to limit the occurrence of different [S]tates creating competing custody awards.” Pilkington, 230 Md. App. at 579. The UCCJEA defines four types of jurisdiction: initial jurisdiction, FL § 9.5-201; exclusive, continuing jurisdiction, FL § 9.5-202; jurisdiction to modify an existing custody order, FL § 9.5-203; and temporary emergency jurisdiction, FL § 9.5204. The UCCJEA applies to all child custody proceedings, including CINA proceedings. FL § 9.5-101(e). When another State has previously issued a custody order, these provisions restrict a juvenile court’s subject matter jurisdiction. “Just as the authority to make an initial custody determination is exclusive to a single [S]tate, only a single [S]tate may possess authority to modify an existing custody determination.” Pilkington, 230 Md. App. at 579. Additionally, the UCCJEA discourages a State from exercising jurisdiction when it is not the most convenient forum in which to do so. Id.; FL § 9.5-207.
Ordinarily, the home State of a child has exclusive subject matter jurisdiction over a custody dispute. See FL § 9.5-201(a) (1) (“[A] court of this State has jurisdiction to make an initial child custody determination only if … this State is the home [S]tate of the child on the date of the commencement of the proceeding[.]”). The UCCJEA defines home State for minor children over the age of six months, as “the [S]tate in which a child lived with a parent … for at least 6 consecutive months, including any temporary absence, immediately before the commencement of a child custody proceeding[.]” FL § 9.5101(h)(1). When Maryland is not a child’s home State, the UCCJEA provides for temporary emergency jurisdiction “if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” FL § 9.5-204(a). This type of jurisdiction lasts only until an order is obtained from the State having initial jurisdiction. Pilkington, 230 Md. App. at 582-83.
It is unclear exactly when Mother brought J.E. to Maryland, but the record supports a finding that it was in approximately June 2023. Thus, in September 2023 when Mother left her young children alone in a hotel room and refused to return when asked— necessitating their removal to shelter care and prompting the filing of a CINA petition—J.E. had not lived here more than six months. There appears to be no real dispute that, prior to his removal to Maryland, J.E. had lived in Texas his entire life. Under the UCCJEA, Texas was J.E.’s home State, and indeed, that is precisely what the Texas court determined in its custody order. Under the circumstances at the time, however, the juvenile court permissibly assumed temporary emergency jurisdiction under FL § 9.5-204(a). See Pilkington, 230 Md.
App. at 585. But because there was a previous child custody determination that was entitled to enforcement, the juvenile court’s order was only effective until an order was obtained from Texas. FL § 9.5-204(c)(2). By awarding sole legal and physical custody to Father and closing the CINA case, the juvenile court modified the existing Texas custody order, thereby taking actions outside the purview of temporary emergency jurisdiction and establishing impermissible concurrent jurisdiction with Texas. Pilkington, 230 Md. App. at 583.
Here, Texas had jurisdiction to make the initial child custody determination and remained J.E.’s home State at the commencement of the CINA matter in Maryland. Before issuing what amounted to a modification of the Texas court’s custody order, the juvenile court was required to “communicate with the court [in Texas] to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.” FL § 9.5-204(d)(2). This it did not do. The juvenile court, therefore, did not satisfy the
procedural requirements of the UCCJEA.
Maryland had no jurisdiction to decide the issue of custody unless the Texas court determined that “it no longer [had] exclusive, continuing jurisdiction under § 9.5-202 … or that a court of this State would be a more convenient forum under § 9.5-207.” FL
§ 9.5-203 (1). The Texas court was not given the opportunity to make this determination. We conclude that the juvenile court exceeded the jurisdictional restraints imposed under the UCCJEA by entering an order that modified a foreign jurisdiction’s existing custody order when Maryland was not J.E.’s home State and there was no other jurisdictional basis to modify an existing order under FL § 9.5-203. We, therefore, vacate the juvenile court’s custody order and remand the case with instructions that the juvenile court limit itself to the authority contained in and follow the procedures outlined by the UCCJEA before issuing a new custody order, if appropriate after taking those actions. See Pilkington, 230 Md. App. at 566.
CUSTODY ORDER ENTERED BY THE CIRCUIT COURT FOR MONTGOMERY COUNTY, SITTING AS A JUVENILE COURT, VACATED; CASE REMANDED TO THAT COURT TO TAKE FURTHER ACTION IN ACCORDANCE WITH THIS OPINION; COSTS TO BE PAID BY APPELLEES.
FOOTNOTES
1 A CINA is a “child in need of assistance” who “requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” MD. CODE, COURTS & JUDICIAL PROCEEDINGS (“CJ”) § 3-801(f).
3 R.P., who does not share a father with J.E., is not involved in this appeal.
4 Mother’s attorney complained that since J.E. had been placed with Father under the Order of Protective Supervision, no one in Texas had been supervising the matter despite the juvenile court’s request that the Department contact Texas CPS to put “courtesy supervision of the case” in place in Texas. The Department and the child’s attorney advised the juvenile court that although the Department had attempted to communicate with its Texas counterpart, that agency had responded that in the absence of an Interstate Compact on the Placement of Children agreement, it would take no further action.
2 Because we hold that the juvenile court lacked subject matter jurisdiction to issue its custody Order and we remand for further proceedings, we do not consider the other issues raised by Mother, asserting that the juvenile court erred in: (1) denying joint legal custody, (2) failing to expressly grant virtual visitation, and (3) ordering her to stay away from J.E.’s daycare and school.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s marital property and monetary awards. The circuit court’s finding that that the home was entirely marital property was not clearly erroneous. And based on the circuit court’s finding of dissipation, it did not err in calculating the monetary award by using the value of husband’s bank account at the time of the parties’ separation.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
For the reasons below, we affirm.
BACKGROUND
The parties were married in February 2010 in Severn, Maryland. They have three minor children together. In the fall of 2015, Ms. Phillips moved out of the marital home with the children, and the parties separated for approximately one year. After the parties reconciled in November of 2016, Ms. Phillips and the children returned to the home and remained living there until the parties separated on or about June 13, 2021. The parties divorced on August 17, 2023.
The parties had purchased a single-family home in Bowie in May of 2015. The parties agreed at trial that the value of the marital home was $750,000.00. Ms. Phillips asserted that the entirety of the value of the home was marital property; Mr. Phillips asserted that a portion of the value of the home was non-marital.
This matter arises from a divorce and child custody matter in the Circuit Court for Anne Arundel County. Jessica Phillips, appellee, filed a complaint for absolute divorce against Rockwell Phillips, appellant. Following a fourday merits trial, the court entered a judgment of absolute divorce that awarded Ms. Phillips marital property and a monetary award. The court also ordered, pursuant to the parties’ agreement, shared physical and joint legal custody of the parties’ children. On appeal, Mr. Phillips challenges the distribution of marital property.
Mr. Phillips presents the following issues for our review, which we have rephrased and recast as follows:1
1. Whether the circuit court’s determination that the marital home was entirely marital property was clearly erroneous.
2. Whether the circuit court’s calculation of the parties’ indebtedness on the marital home was clearly erroneous.
3. Whether the circuit court erred in calculating the monetary award.
4. Whether the circuit court abused its discretion in denying Mr. Phillips’ motion to alter or amend and his motion for a new trial.
On June 23, 2023, the court delivered an oral opinion as to the divorce, division of marital property, and custody, followed by a written judgment of divorce entered on August 17, 2023. The court granted the parties an absolute divorce. With respect to the assets that are the subject of this appeal, the court awarded each party 50% of the equity in the marital home. The court calculated the equity in the home as $410,072.48 and awarded each party $205,036.24. The court also granted Ms. Phillips a monetary award in the amount of $85,012.20, representing 50% of the parties’ bank account balance of $170,024.40, as of the date of the parties’ separation.
On August 25 , 2023, Mr. Phillips filed a motion to alter, amend and/or revise the judgment and a motion for new trial. The court denied both motions, and Mr. Phillips filed this appeal.
STANDARD OF REVIEW
This Court reviews the rulings of a circuit court, sitting without a jury, “on both the law and the evidence.” Md. Rule 8-131(c). We review a trial court’s factual findings for clear error and determine whether the court’s findings are supported by substantial evidence in the record. MAS Assocs., LLC v. Korotki, 465 Md. 457, 473-74 (2019); see also Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000).
“‘When a trial court decides legal questions or makes legal conclusions based on its factual findings, we review these determinations without deference to the trial court.’” Plank v. Cherneski, 469 Md. 548, 569 (2020) (quoting MAS Assocs., LLC, 465 Md. at 475).
DISCUSSION
I. THE CIRCUIT COURT DID NOT ERR IN FINDING THAT THE MARITAL HOME WAS ENTIRELY MARITAL PROPERTY.
On appeal, Mr. Phillips challenges the circuit court’s finding that the parties’ home was entirely marital property. He contends that the court erroneously failed to credit him for nonmarital funds he claimed he contributed to the down payment on the marital home in the amount of $44,030.32.
A. Legal Framework
Trial courts use a three-step process in determining the division of marital property upon divorce. Md. Code Ann., Fam. Law (“FL”) §§ 8-203–205 (1984, 2019 Repl. Vol.); Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019). A trial court must first decide whether property is marital or non-marital. Abdullahi, 241 Md. App. at 405 (citing FL § 8-203). Next, the court must value all marital property. Id. (citing FL § 8-204). Finally, the court must determine whether division of the marital assets according to title would be unfair; if so, the court may grant a monetary award to adjust the inequity. Id. at 405-06; FL § 8-205(a). “The function [of the monetary award] is to provide a means for the adjustment of inequities that may result from distribution of certain property in accordance with the dictates of title.” Alston v. Alston, 331 Md. 496, 506 (1993) (citation omitted).
In granting a marital award, a court’s determination of whether all or part of an asset is marital or non-marital property is a question of fact. Innerbichler, 132 Md. App. at 229. We will not disturb a trial court’s factual finding as to marital property unless it is clearly erroneous. Id. A trial court’s decision to grant a monetary award, and the amount of that award, is reviewed for abuse of discretion, based on correct legal standards. Flanagan v. Flanagan, 181 Md. App. 492, 521-22 (2008) (citing Alston, 331 Md. at 504); Innerbichler, 132 Md. App. at 230 (explaining that “[t]his [standard of review] means that we may not substitute our judgment for that of the fact finder, even if we might have reached a different result”).
Marital property is defined as “property, however, titled, acquired by [one] or both parties during the marriage.” FL § 8-201(e)(1)). Marital property specifically includes “any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement.” FL § 8-201(e)(2). Non-marital property is any property: “(i) acquired before the marriage; (ii) acquired by inheritance or gift from a third party; (iii) excluded by valid agreement; or (iv) directly traceable to any of these sources.” FL § 8-201(e)(3).
A “‘party seeking to demonstrate that particular property acquired during the marriage is non[-]marital must trace the property to a non[-]marital source.’” Richards v. Richards, 166 Md. App. 263, 276 (2005) (quoting Noffsinger v. Noffsinger, 95 Md. App. 265, 283 (1993)). “Any property acquired during the marriage that cannot be directly traced to a non[-]marital source is marital property.” Noffsinger, 95 Md. App. at 281; see also Melrod v. Melrod, 83 Md. App. 180, 187 (1990) (“Property acquired by purchase during the marriage and not excluded by
valid agreement between the parties, is marital property unless it can be traced directly to a non-marital source of funds or property”).
B. Analysis
Mr. Phillips’ argument implicates the first step in the process, namely, the determination of marital property. Mr. Phillips testified at trial that he provided “$44,000 and some change for the down payment” and paid “$6,000 in liens” owed by the previous owner, “[s]o altogether $49,000 or . . . $50,000.” Mr. Phillips sought to introduce into evidence at trial a U.S. Department of Housing and Urban Development (“HUD”) settlement statement showing the payments made at the closing. Ms. Phillips’ counsel objected to the admission of the HUD statement, arguing that it was not produced in discovery. The trial court sustained the objection and the HUD statement was not admitted into evidence.
In this case, the parties purchased the marital home five years after they married. The court found that Mr. Phillips presented no credible evidence that the funds used to purchase the property were acquired prior to the marriage or from some other non-marital source, noting there was “[n]o tracing of down payments or any liens that he used in order to pay that down payment.” Where a party is unable to trace property acquired during the marriage directly to a non-marital source, the property is marital property. Noffsinger, 95 Md. App. at 281; see also Melrod, 83 Md. App. at 187. Given the absence of tracing in the record here, the circuit court’s finding that that the home was entirely marital property was not clearly erroneous.
II. THE CIRCUIT COURT DID NOT ERR IN CALCULATING THE PARTIES’ INDEBTEDNESS ON THE MARITAL HOME.
Mr. Phillips next argues that the circuit court erred in finding that the balance of the parties’ mortgage on the marital home was $300,927.52, because the May 18, 2023 mortgage statement, which was introduced into evidence at the merits trial, showed that the outstanding mortgage balance was $339,927.52, with an outstanding forbearance amount of $15,485.91.
Based on our review of the record, it appears that the circuit court initially misstated the amount of the outstanding mortgage as $300,927.52. In its oral ruling, the court explained its calculations as follows:
I believe the only credible, the only credible encumbrance was the first mortgage which is $330,900.27 -- I’m sorry -$300,927.52 from Exhibit 3, minus which equals a total equity in the house of $410,072.48, divided in half that would be for the record, $205,036.24.
In the court’s calculations, however, it used the correct amount of the mortgage, $339,927.52, to determine the parties’ total indebtedness. It is undisputed that the parties agreed the value of the house was $750,000.00. Because $750,000.00 minus $410,072.48 equals $339,927.52, it is clear that the circuit court used the correct mortgage amount in calculating the parties’ net equity, although the court misstated the amount of the mortgage
in its oral ruling. For this reason, we conclude that the circuit court did not err in calculating the net equity in the home.
III. THE CIRCUIT COURT DID NOT ERR IN CALCULATING THE MONETARY AWARD.
Mr. Phillips argues that the circuit court made numerous errors in calculating the monetary award: first, he contends that the court erroneously considered the balance in his bank account at the time of the parties’ separation in June of 2021, rather than at the time of trial; and second, he argues that the court failed to account for the home equity line of credit (“HELOC”) in the amount of $248,337.27, and the home improvement loan balance of $26,136.65. As to the second argument, Mr. Phillips reasons that the HELOC and home improvement loans were marital debt that should have been deducted from the net equity of the marital home, because he used the money from the HELOC to pay down the forbearance amount and principal on the mortgage.
In response, Ms. Phillips argues that the trial court properly calculated the monetary award based on its findings that Mr. Phillips had dissipated marital funds after the parties’ separation, and that he obtained the HELOC and home improvement loan without her knowledge and for the purpose of encumbering the home and reducing the amount of the monetary award to Ms. Phillips.
A. Legal Framework
In determining the value of the marital property, the court generally values the property as of the date of the divorce entry. Doser v. Doser, 106 Md. App. 329, 348 (1995). For purposes of making a monetary award, the trial court must consider “the economic circumstances of each party at the time the award is to be made.”
FL § 8-205(b)(3); see also Green v. Green, 64 Md. App. 122, 141 (1985) (explaining that “equity requires that reasonable efforts be made to ensure that valuations of marital property approximate the date of a judgment of divorce which includes a monetary award”).
An exception to the general rule exists “when a court ‘finds that property was intentionally dissipated in order to avoid inclusion of the property towards consideration of a monetary award . . . .’” Omayaka v. Omayaka, 417 Md. 643, 653 (2011) (quoting Sharp v. Sharp, 58 Md. App. 386, 399 (1984)). “Dissipation may be found where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown.” Sharp, 58 Md. App. at 401. “‘The doctrine of dissipation is aimed at the nefarious purpose of one spouse’s spending for his or her own personal advantage so as to compromise the other spouse in terms of the ultimate distribution of marital assets.’” Omayaka, 417 Md. at 654 (quoting Heger v. Heger, 184 Md. App. 83, 96 (2009)).
Dissipated property is valued as of the time it is intentionally dissipated. See Hollander v. Hollander, 89 Md. App. 156, 170 (1991); Karmand v. Karmand, 145 Md. App. 317, 345 (2002) (noting that it was irrelevant that the dissipated funds no longer
existed at the time of trial; the trial court was entitled to treat the funds as if they still existed).
The spouse alleging dissipation has the initial burden of providing evidence of dissipation. Omayaka, 417 Md. at 656-57 (citing Jeffcoat v. Jeffcoat, 102 Md. App. 301, 311 (1994)). Once the alleging spouse establishes a prima facie case that marital funds have been dissipated, the burden shifts to the other spouse to show that the funds were used for an appropriate marital or family purpose. Id. The spouse alleging dissipation retains the burden of persuading the court that marital funds were expended for the purpose of reducing the total funds available for distribution. Id. Evidence showing “that a spouse made sizable withdrawals from bank accounts under his or her control is sufficient to support the finding that the spouse had dissipated the withdrawn funds[.]” Id. at 657. Relevant for our purposes, a reviewing court “‘will not set aside a trial court’s determination regarding dissipation of marital assets unless the determination is clearly erroneous.’” Id. at 654 (quoting Beck v. Beck, 112 Md. App. 197, 216 (1996)).
B. Analysis
At trial, Ms. Phillips introduced Mr. Phillips’ bank statements dated June 2021, August 2022, and May 2023, all of which she obtained by subpoena. Mr. Phillips did not object. Mr. Phillips’ bank statement for June 2021 showed a checking account balance of $170,024.40; his bank statement for August 2022 showed a checking account balance of $100,409.66; and his bank statement for May 2023 showed a negative checking account balance.
Ms. Phillips also testified that Mr. Phillips’ bank account showed multiple large wire transfers of funds from the account following the parties’ separation. Specifically, on August 1, 2022, Mr. Phillips wired $100,000.00 to Beljoe Homes and Property, Ltd. On that same date, Mr. Phillips’ bank account received a wire deposit of $99,960.00. Ms. Phillips testified that she had never heard of Beljoe Homes and Property, nor was she able to find any information regarding an entity by that name. Mr. Phillips then wired $150,000.00 to Beljoe Homes and Property, Ltd. on August 3, 2022, and another $33,334.00 on August 30, 2022. On August 31, 2022, Mr. Phillips transferred $8,000.00 to an account ending in 7671.
With respect to the decline in value of Mr. Phillips’ bank account from $170,024.40 to a negative balance over the course of two years, Mr. Phillips explained that “most of that money went into renovations” and “was put back into the house.” With respect to the HELOC, Mr. Phillips testified that he applied for the HELOC in April of 2022 to pay for renovations to the home, necessitated by flooding in the basement, and to install a deck. Mr. Phillips claimed that the total cost of renovations to the home was $270,000.00. He testified that he had receipts for the repair work done to the house, but he had not provided them to his counsel. Mr. Phillips presented no receipts or other documentation at trial relating to any repair work.
Ms. Phillips testified that she had no knowledge of Mr. Phillips obtaining the HELOC or any other type of loan following the parties’ separation in 2021. She argued that Mr. Phillips had encumbered the marital home with the HELOC to devalue the house, and that he used those funds for personal use, not for
In its oral ruling, the court made a finding that Mr. Phillips had dissipated $170,024.40 in marital funds, explaining:
As far as the [c]ourt finds based on the evidence, [Ms. Phillips] has proven by a preponderance of the evidence, [Mr. Phillips] still has the money he took out of the house in the bank accounts, either that or he[ has] purchased items to
replace it, such as cars[2] which can be sold and ultimately used to pay -- to bring that money back in. [Mr. Phillips] has in no way rebutted [Ms. Phillips’] claims with credible evidence. Once again, there are -- where are the contracts, the bills, the payment history for the quote, home repairs, improvements made after the separation[?] There are none whatsoever. They weren’t provided in discovery and they weren’t entered into [evidence] in court.
If you truly spent that money, you should have had documentation to that effect and the [c]ourt does not find it credible that you took out -- you encumbered the[] house[ ]in order to improve the house but you did it in order to try to circumvent paying [Ms. Phillips] her share of the equitable value of the home and the bank account.
The court ordered that Mr. Phillips pay Ms. Phillips $85,012.20, representing one-half of the amount dissipated by Mr. Phillips.
The court further found that Mr. Phillips had utilized the HELOC and home loan for the purpose of reducing the equity in the home available for distribution. The court stated: . . . With regard to the HELOC and the other loan, the home improvement loan or the consumer loan, whatever you call it, in the amount of $248,337.28 and $26,075, [Mr. Phillips] stated that he encumbered the home as a result of home repairs but produced absolutely no independent evidence of those payments, not a single bill, receipt or evidence of payment.
And the [c]ourt does not find [Mr. Phillips] credible that he made any repairs and also finds it[] suspicious that he took out the HELOC almost immediately after [Ms. Phillips] left him. The [c]ourt believes that [Mr. Phillips] attempted to put the money somewhere and that the HELOC was to defeat any marital award to [Ms. Phillips] and not because he used it on the house.
Also, the house was appraised at the time of the HELOC in the amount of $800,000 and the parties agreed that it was worth $750,000 at the time of divorce. So, it had to have been appraised while allegedly all these damages according to him. So, therefore, I find that the house is worth . . . $750,000 by agreement of the parties.
In this case, Ms. Phillips established a prima facie case of dissipation based on Mr.
Phillips’ bank records following the parties’ separation. Mr. Phillips failed to carry his burden of demonstrating that he used the funds from the bank account, the HELOC or loan for a family-related purpose. Though he claimed that he spent the money on home repairs and renovations, he presented no documentary evidence of the alleged payments to support his claim, and the trial court simply did not find his testimony credible. The trial court’s finding that Mr. Phillips dissipated $170,024.40 in funds as well as the funds he obtained from the HELOC and loan was supported by competent evidence in the record, and thus was not clearly erroneous. See Omayaka, 417 Md. at 659 (noting that, in assessing the credibility of witnesses, the trial court “was entitled to accept—or reject— all, part, or none of the testimony of any witness). Accordingly, based on the circuit court’s finding of dissipation, we hold that the court did not err in calculating the monetary award by using the value of Mr. Phillips’ bank account at the time of the parties’ separation.3
Mr. Phillips argues further that the circuit court committed “clear error” by not considering Ms. Phillips’ financial status. The court, however, did consider Ms. Phillips’ financial status and the evidence she submitted. The record shows that Ms. Phillips introduced copies of her paystub and W-2 form for 2022, as well as a long form financial statement pursuant to Md. Rule 9-203(a). In addressing the parties’ economic circumstances, the court stated: “[t]he parties agree that [Ms. Phillips] makes $8[,]708 and the only evidence I have is [Mr. Phillips] works for the federal government and he makes [$]10[,]909.” The court proceeded to review the parties’ financial statements at length. Mr. Phillips’ counsel did not cross-examine Ms. Phillips about her financial status or argue to the trial court that her financial information was inaccurate or otherwise lacking. Therefore, to the extent that Mr. Phillips seeks to challenge the accuracy of Ms. Phillips’ financial information for the first time on appeal, his argument is unpreserved, and we shall not address it. Md. Rule 8-131(a).
Mr. Phillips also claims that the circuit court failed to consider that he would be required to sell the marital home to fulfill his obligation under the monetary award, and as a result, erred in failing to further reduce the net equity of the marital home by ten percent to account for the closing costs associated with the sale. Because Mr. Phillips did not raise this issue before the circuit court, the issue is unpreserved for our review, and we shall not address it. Md. Rule 8-131(a).
IV. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN DENYING MR. PHILLIPS’ POST-TRIAL MOTIONS.
Mr. Phillips additionally argues that the circuit court abused its discretion in denying his motion to alter or amend the judgment and his motion for a new trial, because the court failed to consider documentation he acquired after trial regarding payments he made for repairs using funds from the HELOC and home improvement loan. Specifically, Mr. Phillips contends that he submitted “new, relevant and material” evidence regarding detailed construction plans, materials, contractor payment information, and bank records requiring that the trial court
recalculate the monetary award.
This Court’s review of the denial of a motion to alter or amend under Maryland Rule 2-534 is “limited to whether the trial judge abused his discretion in declining to reconsider the judgment.” Grimberg v. Marth, 338 Md. 546, 553 (1995); see also Estate of Vess, 234 Md. App. 173, 205 (2017) (“[T]he denial of a motion to revise a judgment should be reversed only if the decision ‘was so far wrong—to wit, so egregiously wrong—as to constitute a clear abuse of discretion.’” (quoting Stuples v. Baltimore City Police Dep’t, 119 Md. App. 221, 232 (1998))). Indeed, a trial judge’s discretion deciding a motion to alter or amend “is more than broad; it is virtually without limit.” Steinhoff v. Sommerfelt, 144 Md. App. 463, 484 (2002). A motion to alter or amend “is not a time machine in which to travel back to a recently concluded trial in order to try the case better with hindsight.” Id. A trial judge has “boundless discretion” not to consider issues “that could have been raised earlier but were not[.]” Id.
Similarly, “[t]he standard of review of the denial of a motion for new trial is abuse of discretion.” B-Line Med., LLC v. Interactive Dig. Sols., Inc., 209 Md. App. 22, 45 (2012). A court abuses its discretion “‘where no reasonable person would take the view adopted by the [trial] court’ or where the court acts ‘without reference to any guiding rules or principles.’” Johnson
v. Francis, 239 Md. App. 530, 542 (2018) (quoting Powell v. Breslin, 430 Md. 52, 62 (2013)).
Here, Mr. Phillips sought to relitigate the trial judge’s finding that he used the funds from the HELOC and home loan for a purpose unrelated to the repairs at the home. Mr. Phillips stated at trial that he had documents showing the repairs he made to the home, but that he had failed to provide those documents to his attorney. In his motions to alter or amend and for a new trial, Mr. Phillips provided no explanation for his failure to produce the documents at trial, and no basis for the court to consider newly obtained documents. As such, we perceive no abuse of discretion in the circuit court’s refusal to reconsider the judgment.
CONCLUSION
We hold that the circuit court did not err in finding that the home was entirely marital property, in issuing the monetary award, or in calculating the parties’ indebtedness on the martial home. We also hold that the circuit court did not abuse its discretion in denying Mr. Phillips’ motion to alter or amend the judgment or his motion for a new trial. Accordingly, we affirm.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 In his brief, Mr. Phillips phrases the issues as:
1. Did the Court err in the calculation of the total marital award in the amount of $290,048.44 when it used the parties’ financial information from the date of separation instead of their financial information at the time of trial as required by Maryland Code, Family Law, § 8-205(b)[]?
2. Did the Court err when calculating the total marital award in the amount of $290,048.44 when it 1) neglected to properly determine the equity in the marital home by failing to accurately calculate the outstanding mortgage, forbearance amount, HELOC, HIL and closing costs at the time of the hearing; 2) failed to credit Appellant’s premarital contribution to the down payment; 3) failed to accurately determine each party’s financial status at the time of the hearing?
3. Did the Court err in denying outright Appellant’s Motion to Alter, Amend, and/or Revise Judgment without addressing any issues raised by the Appellant?
4. Did the Court err in denying outright Appellant’s Motion for a New Trial without addressing any issues raised by the Appellant?
2 In the parties’ joint property statement, Mr. Phillips reported that he owned a 2022 Cadillac Escalade valued at $80,000.00 and a 2020 Tesla Model S valued at $70,000.00.
3 In his brief, Mr. Phillips asserts that the trial court erred in utilizing his bank account balance as of June, rather than July, of 2021. He provides no further argument in support of this contention, and we decline to address it. Tallant v. State, 254 Md. App. 665, 689 (2022) (“Maryland courts have the discretion to decline to address issues that have not been adequately briefed by a party.”).
Case Index
Retroactive child support; evidence
Maria Pellico v. Timothy Wolford (Unrep.) 11
Child support; evidence Juno Simmons v. Joi Simmons (Unrep.)
Monetary award; marital funds; property distribution
Denika Tokunaga v. Lance Tokunaga (Unrep.)
Marital property; continuance; abuse of discretion
