Collins v. Collins, No. 120

• Court: Court of Special Appeals of Maryland
• Writing for the Court: KENNEY.
• Citation: 798 A.2d 1155,144 Md. App. 395
• Parties: Daniel COLLINS v. Cynthia COLLINS.
• Docket Number: No. 120
• Decision Date: 30 May 2002

798 A.2d 1155
144 Md. App. 395

Daniel COLLINS
v.
Cynthia COLLINS

No. 120, Sept. Term, 2001.

Court of Special Appeals of Maryland.

May 30, 2002.

798 A.2d 1159

Susan J. Rubin, Rockville, for appellant

Dorothy R. Fait (Fait, Malament & Wise, LLP, on the brief), Rockville, for appellee.

Argued before KENNEY, ADKINS and WILLIAM W. WENNER (Ret'd, specially assigned), JJ.

798 A.2d 1156

798 A.2d 1157

798 A.2d 1158

KENNEY, Judge

Lieutenant Colonel Daniel Collins ("Lt. Col. Collins") appeals a decision of the Circuit Court for Montgomery County disposing of marital property, awarding child support, and awarding attorney's fees to appellee, Cynthia Collins, Ph.D. ("Dr. Collins"). On appeal, Lt. Col. Collins poses for our consideration three questions, which we have rephrased as follows:

I. Did the trial court commit reversible error in arriving at the form and the amount of the monetary award, the pension award, and the reservation on the issue of alimony, made in favor of Dr. Collins?

II. Did the trial court commit reversible error in its child support award?

III. Did the trial court commit reversible error by awarding attorneys' fees to Dr. Collins?

For the reasons set forth below, we vacate the portion of the court's monetary award requiring Lt. Col. Collins to pay Dr. Collins $5,896.¹ We vacate the child support order and attorneys' fees award, and remand the case for further proceedings on those issues. In all other respects, we affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married in Utah on July 21, 1979. When they divorced, Dr. Collins was fifty-one years old and Lt. Col.

798 A.2d 1160

Collins was forty-nine years old. Their only child, Jason Collins, was born on October 28, 1984. The family moved a number of times due to Lt. Col. Collins' Air Force career, but, at the time of the divorce, they had lived in Maryland for twelve years. Lt. Col. Collins, however, maintained his residency in the State of South Dakota, as members of the armed forces are permitted to do.²

In early January 2000, Lt. Col. Collins traveled from Maryland to South Dakota for a family funeral. On or about January 8, 2000, while still in South Dakota, he filed for divorce on the grounds of irreconcilable differences. During this time, Lt. Col. Collins was in the process of retiring. His retirement became effective March 31, 2000.

Lt. Col. Collins subsequently returned to the marital home in Maryland, without telling Dr. Collins that he was seeking a divorce. On January 14, 2000, Dr. Collins returned from work to find that Lt. Col. Collins had left, taking a number of belongings with him. He left notes for both Dr. Collins and Jason, but the notes did not explain why he had left or that he had filed for divorce.

On January 15, 2000, a process server arrived at the marital home and served the South Dakota divorce papers. The petition for divorce alleged, inter alia, that Jason was not Lt. Col. Collins' son and requested paternity testing. Jason, who was looking at the papers over Dr. Collins' shoulder, became immediately aware of these allegations. Consequently, Jason does not wish to see his father and has, throughout the proceedings below, refused visitation, even though Lt. Col. Collins apparently had a paternity test conducted and has satisfied himself that Jason is his son.

Dr. Collins immediately retained counsel in both Maryland and South Dakota in an effort to dismiss the South Dakota case for lack of jurisdiction.³ On February 1, 2000, Dr. Collins filed a complaint for absolute divorce in the Circuit Court for Montgomery County.

On March 21, 2000, the Circuit Court of the Second Judicial Circuit of South Dakota determined that it had jurisdiction to grant or deny the divorce, but that it lacked jurisdiction to decide issues of alimony, child support, child custody, and the division of marital property. The divorce was granted on August 7, 2000.

In the interim, the Maryland case was proceeding on the division of property, alimony, and child support and custody.⁴ For a period of time, Dr. Collins was unable

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to serve Lt. Col. Collins, who had left no forwarding address and was apparently making himself unavailable. Eventually, she had to arrange for alternative service. He finally answered the complaint on June 7, 2000.

In her complaint, Dr. Collins requested pendente lite relief, including child support, child custody, and alimony. A hearing was held before a Special Master on August 8, 2000, the day after the parties' divorce became final in South Dakota. At that hearing, Dr. Collins explained that she had obtained a Doctorate in Nursing Science during the marriage in order to increase her earning capacity. At the time of the hearing, she was earning $60,000 a year as an assistant professor at the University of Maryland in Baltimore. Although Lt. Col. Collins had received a job offer, he had not yet commenced employment. The hearing resumed on August 23, 2000, at which time the matter was taken under advisement. The master's report and recommendations were filed on October 18, 2000.

Lt. Col. Collins filed exceptions to the master's recommendations on October 30, 2000. The circuit court held a hearing on the exceptions on November 22 and December 8, 2000. It appears that the circuit court, in an oral ruling, granted some of Lt. Col. Collins' exceptions and denied others, but it never entered a written order.

A hearing on the merits of the case occurred on February 14 and 15, 2001, before a different judge. The trial court issued an oral ruling on the issues on February 15, 2001, and a written order followed on March 1, 2001. The order stated, in pertinent part:

ORDERED that the plaintiff's TIAA/CREF [retirement account] is hereby determined to be marital property with a value of $4,971.00 and the defendant's stocks are hereby determined to be marital property with a value of $3,752.00, and no distribution shall be made between the parties with respect thereto, and it is further ORDERED that the Utah land is hereby determined to be marital property with a value of $2,000.00, and said real property shall be sold, and the net proceeds of sale divided equally between the parties, and it is further ORDERED that the three (3) loose diamonds in defendant's possession are hereby determined to be marital property with an existing value of $6,500.00, and it is further ORDERED that the Utah condominium is hereby determined to be defendant's pre-marital property; however, for reasons placed on the record, plaintiff is hereby determined to have a marital interest therein in the amount of $6,158.00, and it is further ORDERED that the defendant's military pension is hereby determined to be marital property, and the plaintiff is hereby awarded an interest in said pension as follows: $3,685.00/mo. x 248 (# of mos. of service during marriage) x 50% ------------------------------------------ 310 (# of mos. of service) or $1,474.00 per month, and it is further ORDERED that the defendant is determined to owe to the plaintiff the sum of $5,896.00 as her portion of pension benefits from May 1, 2000 to and including August 31, 2001, and it is further

798 A.2d 1162

ORDERED that a monetary award is hereby granted in favor of the plaintiff and against the defendant in the amount of $15,304.00 as an adjustment of the equities of the parties in and to marital property, and it is further ORDERED that a judgment is hereby entered in favor of Cynthia Collins and against Daniel Collins in the amount of $15,304.00, and it is further ORDERED that commencing March 1, 2001, the plaintiff shall pay the monthly expense for survivor's benefits in the defendant's pension in the amount of $239.53 per month, and it is further ORDERED that the issue of alimony is hereby reserved, to be revisited by the Court in the event the defendant is declared disabled and begins to receive disability pay⁵ which affects the monthly amount plaintiff receives from defendant's pension, and it is further ORDERED that the defendant shall pay to the plaintiff for the support and maintenance of the minor child as child support the sum of $1,709.00 per month, commencing and accounting from March 1, 2001, and due and payable on the first day of each month in advance, and it is further * * * ORDERED that the defendant is determined to be in arrears in his payments of child support to and including February, 2001 in the amount of $14,144.94 (which sums represents child support arrears stipulated to by the parties of $15,500.94, less $1,356.00 credited to defendant as a result of the recalculation of child support for the months of May through August, 2000), and it is further ORDERED that a judgment is hereby entered in favor of Cynthia Collins and against Daniel Collins in the amount of $14,144.94, and it is further * * * ORDERED that the defendant shall pay to the plaintiff as a contribution toward her attorney's fees incurred in connection with these proceedings the sum of $17,500.00, and it is further

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ORDERED that a judgment is hereby entered in favor of Cynthia Collins and against Daniel Collins in the amount of $17,500.00.

This appeal followed.

DISCUSSION

I. Monetary Award and Pension Distribution

Appellant first argues that the trial court erred when it calculated the monetary award by including property that was non-existent at the time of the trial as well as by excluding certain property. Specifically, appellant argues that the diamonds had been sold at the time of trial, and were therefore improperly included as marital property. He also complains that the trial court failed to award Lt. Col. Collins any portion of Dr. Collin's pension account. Further, he argues that the trial court erred in the division of Lt. Col. Collin's military pension, in the award of $5,896 arising out of Lt. Col. Collin's pension payments, and by reserving on...