Guarino v. Guarino, 1852

• Decision Date: 01 September 1995
• Docket Number: No. 1852,1852
• Citation: 684 A.2d 23,112 Md.App. 1
• Parties: Angelo C. GUARINO v. Helene A. GUARINO. ,
• Court: Court of Special Appeals of Maryland

Page 1

112 Md.App. 1

684 A.2d 23

Angelo C. GUARINO v. Helene A. GUARINO.

No. 1852, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Oct. 31, 1996.

Jeffrey N. Greenblatt (John S. Weaver and Brodsky, Greenblatt & Renehan, Chartered, on the brief), Gaithersburg, for Appellant.

Deborah E. Reiser (Deckelbaum, Ogens & Fisher, on the brief), Washington, DC, for Appellee.

Argued before WENNER and CATHELL, JJ., and PAUL E. ALPERT, Judge (Retired), Specially Assigned.

PAUL E. ALPERT, Judge, Specially Assigned.

In this appeal, Angelo C. Guarino, appellant, challenges an award of alimony pendente lite and initial attorney's fees to Helene Ann Guarino, appellee, by the Circuit Court for Montgomery County. He brings to our attention four allegations of error:

I. Did the Chancellor err in granting any alimony or counsel fees to Mrs. Guarino where Mrs. Guarino had no cause of action and had no probability of success based upon the causes of action she alleged in her pleading?

II. Did the Chancellor err in granting any alimony, let alone $3,500.00 per month, to Mrs. Guarino where Mrs. Guarino's needs did not require such an award of alimony, the Chancellor failed to properly exercise his independent judgment, as required by Domingues v. Johnson, 323 Md. 486, 593 A.2d 1133 (1991), to determine Mrs. Guarino's reasonable needs, Mrs. Guarino was capable of contributing financially toward her own support, Mrs. Guarino had voluntarily impoverished herself, and Mr. Guarino lacked the ability to pay alimony?

III. Did the Chancellor abuse his discretion in awarding retroactive alimony where the award represented 90% of Mr. Guarino's income earned during the retroactive period, the Chancellor failed to consider the funds that Mrs. Guarino had taken from the parties' bank accounts, Mrs. Guarino's ability to support herself as further shown by her only nominal debts since the parties' separation through the date of [the] hearing?

IV. Did the Chancellor err in awarding initial counsel fees where Mrs. Guarino had already paid her attorney a fee with the parties' joint funds and the retroactive alimony gave her further ability to pay her attorney additional means?

When shorn of verbiage, appellant's issues are: did the chancellor err in granting (1) alimony pendente lite and (2) initial attorney's fees to appellee.

On August 15, 1994, appellee filed a complaint for limited divorce, alimony, and other relief, to which appellant filed an answer. The case proceeded to a hearing on January 27, 1995, during which the master heard testimony from appellee, appellant, and two expert witnesses, received exhibits, and entertained arguments. Thereafter, on April 20, 1995, the master filed her Report and Recommendations. We shall recount the relevant portions of her findings.

On August 11, 1994, after some thirty-three years of marriage to appellant, appellee, who was in her fifties, left the couple's marital residence with only her purse and family automobile. Thereafter, she returned to collect personal belongings and assorted documents.

Prior to her departure, and going back to 1979, appellee had worked alongside appellant in the couple's corporation, Guarino Corporation. When she left home, her paychecks from the corporation were terminated.

Lacking the financial resources to obtain housing, appellee sought and obtained shelter with her father in Pennsylvania and family and friends in Maryland. She borrowed money from her father and cashed in a $3,100.00 life insurance policy to meet her living expenses. Appellee also withdrew $7,500.00 from a joint savings account, which amount she paid to her legal counsel as a retainer. Appellant provided appellee $750.00 at Christmas and an additional $1,000.00 the week before the January 27, 1995 hearing.

Appellant, who remained in the eleven room, three and one-half bath Potomac, Maryland marital home, refused to provide appellee with any support apart from the $1,750.00. He liquidated $33,000.00 residing in the couple's joint investment account and deposited the couple's joint tax refund into his own account. Subsequent to appellee's departure, and contemporaneous to appellant's dominion of the aforementioned monies, he spent $8061.00 on home improvements and furnishings, and undertook other home improvement projects.

Financial records relating to the couple's personal and business dealings and testimony as to the corporation's financial status revealed that appellant, "without question," had the financial resources to contribute to appellee's financial needs during the pendente lite period. Appellee, who was not in a position to support herself during that period, had reasonable needs of approximately $3,500.00 per month. Furthermore, appellee's homelessness and inability to support herself constituted extraordinary circumstances justifying an entry of an immediate order for pendente lite support from the date of the hearing, January 27, 1995, onward.

Appellee incurred $12,403.11 in attorney's fees and expenses, of which she paid $7,385.61 from joint funds. Five thousand seventeen dollars and fifty cents remained outstanding, in addition to $2,500.00 she paid as a retainer to an expert for the purposes of valuation of marital assets.

In light of those findings, the master recommended that the chancellor order appellant to pay appellee alimony pendente lite of $3,500.00 per month, commencing from August 15, 1994, and $7,500.00 for initial attorney's fees and costs.

The very next day, April 21, 1995, the chancellor signed an Immediate Pendente Lite Order, in which, among other things, he ordered that appellant pay to appellee "as pendente lite alimony the sum of $3,500.00 per month, commencing and accounting from February [sic] 15, 1995...." Appellant filed exceptions to the Master's Report and Recommendations. On July 19, 1995, the chancellor heard exceptions to the Report and Recommendations. Nine days later, the chancellor issued an Order overruling appellant's exceptions to the master's Report and Recommendations. To preserve his appellate posture, appellant timely noted an appeal from the overruling of his exceptions.

Thereafter, appellant filed a counter-complaint for Absolute Divorce and appellee filed an amended and supplemental complaint for Absolute Divorce. The issues of alimony pendente lite and initial counsel fees remained unresolved until May 2, 1996, when the chancellor signed an Order granting to appellee alimony pendente lite of $3,500.00 per month from August 15, 1994, entered judgment against appellant in the sum of $15,750.00 for unpaid alimony pendente lite, credit given for the $1750.00 given to appellee, and ordered that appellant pay to appellee for initial counsel fees $7,500.00. On the ninth of May, appellant noted an appeal to this Court.

I. Alimony

Appellant crafts his first assault on the chancellor's judgment from our quotation of Nelson on Divorce and Annulment (2d ed. 1945). We quoted that work in Maynard v. Maynard, 42 Md.App. 47, 50, 399 A.2d 900 (1979), which, in turn, we quoted in James v. James, 96 Md.App. 439, 450-51, 625 A.2d 381 (1993). In Maynard, we noted the differences between alimony pendente lite and permanent alimony and cited to Nelson for the rationale underlying an award of alimony pendente lite. Section 12.24 of Nelson, as quoted in Maynard, read as follows:

The applicant for the allowance must show, at least prima facie * * * in order to obtain an allowance pendente lite of temporary alimony, allowance for support of children, and/or suit money, including counsel fees, (1) the pendency of the matrimonial action in which the allowance is sought; (2) the existence of a marriage between the parties; (3) a probable cause of action or defense on the part of the applicant, with reasonable probability of success of the applicant on the trial; (4) financial inability of the wife to support herself and/or to prosecute or defend the action; and (5) the ability of the husband to make payments.

Maynard, 42 Md.App. at 50, 399 A.2d 900.

In James, the alimony issue before us was whether the chancellor should have considered educational expenses in making a pendente lite or temporary alimony award. In addition to quoting from Maynard for the quotation of Nelson 's factors found therein, we utilized those factors as if they were legitimate.

In the case sub judice, there is no dispute as to the pendency of the matrimonial action in which the allowance is sought, the existence of the marriage between the parties, a probable cause of action or defense on the part of the appellee with a reasonable probability of his success at trial, and the ability of appellant to make the payments.

James, 96 Md.App. at 453, 625 A.2d 381.

Appellant latches on to the third Nelson factor and contends that the master ignored that factor, along with the others, and that appellee's evidence "was totally insufficient to meet the requirements for 'a probable cause of action with reasonable probability of success.' " His foothold is of our own making.

The Court of Appeals has not issued writs of certiorari for either case or cited the same. Our review of the citations to each case, all from this Court, reveal that no mention is made of the Nelson factors. See Payne v. Payne, 73 Md.App. 473, 482, 534 A.2d 1360, cert. denied, 312 Md. 411, 540 A.2d 132 (1988) (Maynard ); Rosenberg v. Rosenberg, 64 Md.App. 487, 535, 497 A.2d 485, cert. denied, 305 Md. 107, 501 A.2d 845 (1985) (Maynard ); Bender v. Bender, 50 Md.App. 174, 182, 436 A.2d 518 (1981) (Maynard ); Bunn v. Kuta, 109 Md.App. 53, 69, 674 A.2d 26 (1996) (James ); Lemley v. Lemley, 102 Md.App. 266, 276, 649 A.2d 1119 (1994) (James ); Reuter v. Reuter, 102 Md.App. 212, 229, 649 A.2d 24 (1994) (James ); Speropulos v. Speropulos, 97 Md.App. 613, 617, 631 A.2d 514 (1993) (James ).

The third Nelson factor is in direct opposition to Maryland common law. In McCurley v. McCurley, 60 Md. 185 (1883), the Court...