Doser v. Doser

Decision Date01 September 1994
Docket NumberNo. 2032,2032
Citation664 A.2d 453,106 Md.App. 329
PartiesPamela W. DOSER, v. John C. DOSER. ,
CourtCourt of Special Appeals of Maryland

Carren S. Oler and John W. Thyden (Thyden, Gross, Callahan & Oler, on the brief), Chevy Chase, for appellant.

Bruce L. Marcus (M. Celeste Bruce and Marcus & Bonsib on the brief), Greenbelt, for appellee.

Argued Before WENNER, FISCHER and HOLLANDER, JJ.

HOLLANDER, Judge.

Pamela Doser, appellant, filed a complaint for absolute divorce in the Circuit Court for Montgomery County on September 17, 1991, on grounds of desertion. Following a lengthy hearing before a Domestic Relations Master in November, 1992, Ms. Doser filed exceptions to the master's findings and recommendations, which the circuit court heard on June 3, 1993. At the close of the hearing, the court orally overruled all exceptions but one--the finding as to the value of certain marital property--and, as to the one exception, indicated that it would remand to the master to take further testimony. The court directed the parties to draft an order to that effect, but the parties could not agree on the content of the order.

More than a year later, on August 3, 1994, the court heard de novo testimony, limited to the grounds of divorce. That day, the court issued a written order granting divorce nunc pro tunc to the date on which the master filed his Findings and Recommendations. The court also overruled all of Ms. Doser's exceptions, including the one concerning the value of marital property. From that judgment, Ms. Doser now appeals.

Appellant presents six issues for our consideration, which we have re-ordered for clarity:

1. Did the trial court commit error in failing to issue findings of fact and conclusions of law?

2. Did the trial court commit error in failing to use its independent judgment on the issue of marital property valuation and alimony?

3. Did the trial court commit error in failing to permit evidence of the marital property's value as of the date of the divorce?

4. Did the trial court abuse its discretion in failing to remand to the master after stating on the record that it would be remanded for further presentation of evidence concerning the value of marital property?

5. Did the trial court abuse its discretion in failing to award an adequate amount of indefinite alimony?

6. Did the trial court commit error in failing to award [Ms. Doser] her full attorney's fees?

In light of Domingues v. Johnson, 323 Md. 486, 593 A.2d 1133 (1991) and its progeny, Kirchner v. Caughey, 326 Md. 567, 606 A.2d 257 (1992), Bagley v. Bagley, 98 Md.App. 18, 632 A.2d 229 (1993), and Lemley v. Lemley, 102 Md.App. 266, 649 A.2d 1119 (1994), we answer Questions 1 and 2 in the affirmative. Accordingly, we shall vacate the Chancellor's order and remand for such further proceedings as the court deems necessary in order to make more specific findings with respect to each exception. We also agree, with respect to Question 3, that the court erred in failing to value the marital property as of the date of the divorce. We shall address the remaining issues for the guidance of the trial court. 1 Md.Rule 8-131(a).

Factual Background

The parties hotly contest many of the facts. Nevertheless, the following summary--gleaned from the testimony before the master and the Chancellor, as well as their decisions--appears largely undisputed.

The parties were married on December 17, 1966. They have three children: Christopher, born in 1967; Robin, born in 1969; and John, born in 1981. Beginning in the mid-1970s, Mr. Doser occasionally left the home for extended periods, sometimes without warning and without informing Ms. Doser of his whereabouts. The parties engaged in marital counselling, but whatever spawned the discord was not healed by it. Finally, in January, 1990, Mr. Doser left the home permanently, intending to end the marriage.

Mr. Doser, who was 52 years old when his wife filed for divorce, is a professional golfer. He owns a 52% interest in a limited partnership called the Montgomery Village Golf Club ("Montgomery Village"). He also owns a minority interest of 30% in the Lake Arbor Golf Club ("Lake Arbor"). There is no dispute that these two assets qualify as marital property. Although Mr. Doser's annual income is disputed, it ranges between $75,000 (using only his salary from Montgomery Village) and approximately $105,000 (per his personal tax returns). Following the marital separation, Mr. Doser lived, rent-free, in an abandoned farmhouse located on the proposed site of a project with which he was involved.

When Ms. Doser filed for divorce, she was a 47-year-old full-time homemaker and, during the marriage, she had no appreciable income. Moreover, she suffered from post-polio syndrome. Ms. Doser has weak muscles; she has pain in her shoulders and knees, and she cannot remain standing for long. In 1988, she began taking correspondence courses toward a bachelor's degree in psychology, which she earned in 1992. She planned to earn a masters degree and become a qualified counselor sometime in 1995.

Originally, the case was scheduled for a hearing before a master on June 22, 1992. At the hearing, however, appellant requested a continuance in order to retain an expert to value appellee's ownership interests in the two country clubs; she asserted that she had not yet done so due to a lack of funds. The master granted the continuance, ordered appellee to put adequate funds in an escrow account to pay for the valuation, and postponed the hearing until November, 1992. Thereafter, J. Hunter Pugh, Jr., the appraiser hired by appellant, estimated in his report that, among other assets, Mr. Doser's interest in Montgomery Village was worth over $2 million. As Mr. Pugh anticipated being unable to attend the hearing before the master, the parties prepared a de bene esse deposition.

During the deposition, Mr. Pugh explained the basis for his valuations. In particular, he specified the formulas that he used and the assumptions he had made. On cross-examination, to the surprise of appellant, Mr. Pugh acknowledged that he had grossly misread the tax returns of Montgomery Village, and that as a result, he could no longer stand by his original estimate of value. Mr. Pugh never performed any further analysis and was not paid.

On November 23 and 24, 1992, the master held an evidentiary hearing. When Ms. Doser did not offer Mr. Pugh's de bene esse deposition, Mr. Doser did so, accompanied by an exhibit, prepared by counsel, in which the "correct" numbers (taken from the tax returns) were substituted into the formulas discussed by Mr. Pugh in the deposition. Over appellant's objection, the master accepted the combined deposition and exhibit. Ms. Doser sought to call another expert, but because the expert had been retained only recently, the testimony was excluded. Consequently, no other expert testimony was presented with respect to the value of the Montgomery Village asset.

In addition, the master heard testimony from Josephine Bloom, the comptroller of Montgomery Village. Bloom averred that the partnership had some $1,587,000 of long-term liabilities, of which $722,000 were assumed as part of a large modernization effort in 1991. The financial statements of Montgomery Village for 1991 and 1992 were introduced. Mr. Doser, as a lay witness, testified that he believed that his share of Montgomery Village was worth only $850,000, primarily due to other outstanding debts. Ms. Doser testified that Mr. Doser, in 1990, said he estimated the value of the total assets of Montgomery Village at $4 million, and thus his interest at over $2 million.

The master filed his Findings and Recommendations on February 3, 1993. In it, he found that the value of Mr. Doser's interest in Montgomery Village was $832,000, which he rounded to $850,000. 2 He found that Mr. Doser's annual income was $76,204 and Ms. Doser's income was zero. The master recommended a monetary award of $433,000. With respect to alimony, the master found that Mr. Doser was going increasingly into debt supporting two households. Accordingly, the master suggested that, until the home was sold and the proceeds divided, Mr. Doser should pay $3,000 in monthly alimony, of which $2,750 would be allocated to pay the two outstanding mortgages on the marital home, and that the alimony should terminate altogether upon sale of the marital home. In effect, the master's recommendation would have provided Ms. Doser with $250 per month in alimony pending sale of the home, plus payment of the mortgages. The master also recommended an award of $10,000 in attorney's fees, specifically finding that the amount was fair under the circumstances and that Mr. Doser had the ability to pay it.

Ms. Doser noted several exceptions to the master's findings and recommendations. She requested a remand to the master for further testimony or, in the alternative, for a de novo hearing on all issues. Although her exceptions do not directly correspond to any particular numbered factual finding, we glean from her argument in the Exceptions that Ms. Doser challenged, inter alia, the following findings and recommendations:

1. the finding that Mr. Doser's salary was only $76,000;

2. the finding with respect to the value of the Montgomery Village asset, based on the following errors:

a. the master's erroneous reliance on the exhibit prepared by Mr. Doser's counsel purporting to correct the computational errors in Mr. Pugh's appraisal;

b. absent the exhibit prepared by Mr. Doser's counsel, there is no evidence concerning the value of the Montgomery Village asset;

c. the master's erroneous failure to account for an abnormal decrease in the Montgomery Village cash flow caused by lengthy upgrades in 1991; and

d. the master's erroneous treatment of the debts of Montgomery Village as marital debt, and his concomitant use of the full amount of those debts to reduce the value of Mr. Doser's ownership...

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