Flanagan v. Flanagan

• Citation: 956 A.2d 829,181 Md. App. 492
• Decision Date: 10 September 2008
• Docket Number: No. 395, September Term, 2007.,395, September Term, 2007.
• Parties: Wayne Edward FLANAGAN v. Stephanie Bonn FLANAGAN.
• Court: Court of Special Appeals of Maryland

956 A.2d 829

181 Md. App. 492

Wayne Edward FLANAGAN v. Stephanie Bonn FLANAGAN.

No. 395, September Term, 2007.

Court of Special Appeals of Maryland.

September 10, 2008.

Jane A. Canter (Charles Chlan & Associates, LLC, on the brief), Easton, for appellant.

Sharon M. VanEmburgh (Ewing, Dietz, Fountain & Kehoe, PA, on the brief), Easton, for appellee.

Panel: HOLLANDER, JAMES R. EYLER and WOODWARD, JJ.

HOLLANDER, J.

By "Divorce Order" dated March 15, 2007, the Circuit Court for Talbot County granted Stephanie Bonn Flanagan, appellee, an absolute divorce from Wayne Edward Flanagan, appellant. In addition, the court granted a monetary award to appellee of $30,000; ordered the sale of the marital home, with equal division of proceeds; awarded contribution of $1,045.81 to appellant; and awarded appellee $2,500 in attorney's fees.

On appeal, Mr. Flanagan presents four contentions, which we have recast in the form of questions:

I. Did the court err in granting a divorce based on the ground of mutual and voluntary separation, and in not granting appellant a divorce on the ground of desertion?

II. Did the court err in granting appellee a marital award?

III. Did the court err in granting appellee a portion of her attorney's fees?

IV. Did the court err in denying the motion to revise or amend the judgment, or to clarify it, where a hearing on the motion could have provided potentially dispositive reasoning prior to the transmittal of the record that could have rendered this appeal unnecessary?

For the reasons that follow, we shall affirm in part, vacate in part, and remand for further proceedings.

I. PROCEDURAL AND FACTUAL SUMMARY

The parties were married on November 23, 1984. It was a second marriage for each, and they have no children together. Ms. Flanagan left the family home on February 2, 2005.

On April 11, 2006, appellee filed a Complaint for Absolute Divorce on the ground of constructive desertion. Appellant filed an Answer and a Counter-Complaint for Absolute Divorce on May 17, 2006, on the ground of actual desertion. Among other things, each party sought a monetary award and attorneys' fees. At the time of trial on September 19, 2006, appellant was 68 years old and appellee was 64 years of age.

On September 15, 2006, the parties filed a Joint Statement of the Parties Concerning Marital and Non-Marital Property. They agreed that the following four items were marital property: (1) their jointly-titled marital home, at 311 Kerr Avenue in Denton, Maryland, which was valued at $165,000, with a mortgage of $91,123.78, and a home equity loan of $19,998.76,¹ for a total equity of $53,877.46; (2) a retirement account owned by appellant, valued at $10,941.73 as of June 2006; (3) a 401(k) account owned by appellee, valued at $2,567.32, against which she had borrowed $1,886.84, for a total value of $640.48 as of August 2006; and (4) a 403(b) account owned by appellee, valued at $1,630.26 as of June 2006. The joint statement also said: "The parties agree that all issues with regard to the remaining property that they hold have been resolved."

Appellant was employed at an auto parts store, and received additional income from social security and a part-time auctioneering job. In 2006, he had a total annual income of $39,696. According to the parties' joint tax return, appellee earned $47,844 in 2005, as an administrator for the Grayce B. Kerr Fund.² She testified, however, that she contemplated retirement in October 2006, because her job was "stressful" due to personnel changes and a change in her work load, and she wanted "to be in closer proximity to a support system." She expected to receive a monthly social security benefit of $1,061, and to seek other employment to supplement her social security. Appellee also testified that she was taking several medications for cholesterol, depression, and panic attacks, and had seen two therapists since 2002.³

Appellee recounted that she moved out of the marital home on February 2, 2005, leaving appellant a letter explaining her decision. She and appellant had lived separate and apart since that date, with no hope of reconciliation.

The letter was admitted into evidence. In particular, appellee cited appellant's drinking and internet sexual contacts as the reasons for her "decision," stating that "it is more painful to live with you than face life alone." The letter referred to an incident with a woman named Marianne (discussed infra), stating: "[Y]ou agreed during joint counseling that you would no longer engage in that behavior. And yet you have continued despite your agreement not to." Appellee also complained that appellant began "drinking every weeknight as soon as [he][got] home and start[ed] drinking as early as 3:30 in the afternoon on weekends." In addition, she claimed that she "walk[ed] on eggshells" when appellant drank, fearing that he would "erupt and spew forth confrontational, threatening and accusatory verbal bile enumerating my real and imagined slights, transgressions and shortcomings covering the last twenty plus years." Moreover, appellee commented:

On the average, we spend 51 waking hours together a week. When you are sober I admire your intelligence, your wit and enjoy being with you. However, I have to deal with your varying degree of intoxication every night for a conservative average of 37 hours per week. This isn't the quality of life I expected to be leading at this stage of my life.

Ms. Flanagan added: "I have resolved not to live my life under these conditions any longer. I want peace."

In her testimony, appellee identified two reasons for her departure from the home, which were consistent with her letter. First, she pointed to appellant's alleged excessive drinking, which often led him to be "accusatory, argumentative, you know, all my faults, real and imagined for twenty years would be paraded out in front of me." Second, she complained about appellant's persistent "internet sexual contacts," which she discovered beginning in 2002. They consisted of visits to pornographic websites, which she characterized as "just nasty," as well as participation in "interactive chat rooms" and activity on dating websites. In December 2002, appellee discovered that appellant had made a date with another couple "to set up a sexual encounter with them at a future date...." She contacted the other couple and arranged, without appellant's knowledge, for the two couples to meet in order to confront appellant. According to appellee, appellant denied his online activity "[u]p until that point no matter what I said...." However, appellee noted that when the other woman, Marianne, "was standing in front of [appellant] with her boyfriend ... then he could no longer deny it because [the other woman] was there in person." Appellee indicated that she believed appellant's behavior had stopped for a time, but resumed in 2004.

In addition, appellee suggested that appellant was "threatening in his manner." But, she described only one incident of physical force, which occurred in January 2003, when appellant "threw a wallet" at appellee after a session of joint counseling.

Appellant stated that on the afternoon of February 2, 2005, as he was driving home from his job as an auctioneer at the Baltimore City tow lot, appellee called his cellphone and asked him to pull the car over. She then told him she was leaving. Claiming that he was "totally flabbergasted," appellant recalled that he "was close to passing out" from the news. When he returned to the marital home, all of the living room furniture and appellee's bedroom furniture were gone, as well as several boxes that he thought had been packed to go to an auction. He found appellee's farewell letter "on the desk next to the computer."

Appellant admitted to "prowling" for women on the internet in order to "add a little spice to [his] sex life." He explained that in 2002 he had a "severe prostatitis attack," which rendered him "dysfunctional." This condition prevented the parties from engaging in a physical relationship, and "stupidly" prompted him to visit online chat rooms, through which he conversed with a woman named Marianne. He arranged to meet her at an area restaurant, and she brought her boyfriend, Ron.⁴ Appellant testified: "Marianne's demeanor did not appeal to me. She had tattoos. She was rough.... [A]nd I really wasn't planning on having sex with another male." So, appellant "bought them a bucket of clams and a couple of beers and left." Appellant claimed that, a week later, appellee told him she was taking him out to dinner. When they arrived at the restaurant, the other couple was there, and appellee "threw her arms around Marianne as if they were ancient friends...." Appellant testified: "I spun on my heel and walked out of [the restaurant] and spent the next two hours sitting in the parking lot by myself." Appellee remained in the restaurant with appellant's car keys.

Mr. Flanagan insisted that he had no other internet encounter after that incident. He maintained that sometime thereafter appellee "helped [him] solve the [sexual dysfunction] problem." He added: "And together I became functional again. I had no need to go on pornographic websites." Further, appellant recalled that the parties participated jointly in counseling. Because the internet chat rooms and the one meeting had created a serious problem between the parties, appellant claimed he "specifically promised [appellee] that [he] would never do it again," and never broke his promise.

In addition, appellant categorically denied ever striking appellee at any time during their marriage. He explained that the wallet incident was a result of appellee rummaging through his things, and he "threw it at her [saying] here, take the whole wallet and, and be done with it."

With regard to his alcohol consumption, appellant insisted that his drinking at home was limited to "a couple of cocktails" before or with dinner every other day or so,...