James v. James

• Decision Date: 01 September 1992
• Docket Number: No. 1579,1579
• Citation: 96 Md.App. 439,625 A.2d 381
• Parties: Diana G. JAMES v. Jon L. JAMES. ,
• Court: Court of Special Appeals of Maryland

Page 439

96 Md.App. 439

625 A.2d 381

Diana G. JAMES v. Jon L. JAMES.

No. 1579, Sept. Term, 1992.

Court of Special Appeals of Maryland.

June 3, 1993.

Paul A. Dorf (Michael G. Hendler, Avery Aisenstark, Charles A.P. Christianson and Adelberg, Rudow, Dorf, Hendler & Sameth, on the brief), Baltimore, for appellant.

Patricia E. McDonald (J. Michael Lawlor, on the brief), Towson, for appellee.

Argued before GARRITY, DAVIS and HARRELL, JJ.

DAVIS, Judge.

This appeal is from a pendente lite alimony order from the Circuit Court for Baltimore County (Kahl, J.). On September 5, 1991 Diana G. James (appellant) filed a complaint for absolute divorce against Jon L. James (appellee). On September 23, 1991 appellee filed a counter-complaint for limited divorce.

On February 3, 1992 appellee requested and was granted a master's hearing on his request for temporary alimony and attorney's fees. After the presentation of testimony and evidence by both parties, the master issued a report in which he recommended an award of temporary alimony to appellee of $4,500 per month and $5,000 in counsel fees.

On May 15, 1992 appellee filed exceptions to the written report and recommendation of the master, and on June 11, 1992 he submitted a memorandum in support of the exceptions and requested a hearing. The trial court granted appellee's request for a hearing.

After conducting a hearing on the exceptions, the court issued a written opinion awarding appellee temporary alimony in the amount of $8,000 per month. Judgment in accordance with that opinion was entered on August 11, 1992. On August 21, appellant filed a motion to Alter or Amend the trial court's August 11, 1992 order. The trial court denied the motion, and appellant noted a timely appeal, in which she presents the following issues for our review:

Whether the trial court erred in considering educational expenses when calculating an award of temporary alimony.

Whether, by reason of the proposed educational program and the demonstrated likelihood it would increase appellee's earning capacity, the trial court erred in granting an award of alimony pendente lite based, in part, on projected educational expenses that must be shown to increase earning capacity of dependent spouse.

Whether the trial court erred in not dismissing exceptions as vague and inadequate.

FACTS

Master's Report and Recommendations

The parties were married on October 21, 1974; they separated on May 2, 1990. No children were born during the course of the marriage.

Prior to the marriage, appellee earned a Bachelor of Arts degree in Sociology and East Asian Studies. Appellee then served with U.S. Army Intelligence from 1965 to 1968, thirteen months of which he was in Viet Nam. Thereafter, appellee returned to the United States to teach at the U.S. Military Intelligence School at Fort Holabird. In 1971 appellee began graduate school at Johns Hopkins University, where he met appellant. Appellee was last employed from 1970 to 1973 as an administrator for a university study, a position for which he received graduate credits. Appellee received a Masters degree in Social Relations (Sociology) from Johns Hopkins University in 1983.

Neither party was formally employed during the course of the marriage. In 1983 appellee studied securities management for one year at the Advest Company. Appellee testified that he kept extensive records of investment trends. He also testified that, during the course of the marriage, he worked on the couple's personal finances and that essentially he was a homemaker. He claimed that he handled all the finances; wrote checks; managed investment relations; "was liaison" with lawyers, trustees, and banks; and was responsible for the maintenance and negotiated the purchase of the residence recently sold by appellant. Essentially, appellee managed appellant's money, to the extent that the trust arrangements made by her deceased father did not already provide for such management. Appellee also had some training in family mediation, having received a training certificate in this field after studying at the Lemmon Institute in San Francisco and continued with advanced training courses in Maryland. In 1989 appellee began training as a pro bono family mediator for the Baltimore County Divorce Mediation Project. Appellant worked for one week in a health restaurant approximately ten years ago.

The parties reported an income in excess of $500,000 on the last joint tax return they filed in 1991. The income was generated by trusts established by appellant's late father. For the year 1990, the couple reported an adjusted gross income of $548,572. Appellant testified that she receives income from trusts and investments. According to an expense sheet filed with the master, appellant had an income of $43,000 per month and expenses totalling $28,308. Appellant's net worth is estimated at $15,000,000, including $7,000,000 from a July 1992 trust distribution. The couple owned a home in Baltimore County, which appellant had recently sold for $484,000. The parties had several telephone-equipped automobiles. During their marriage, the parties spent up to $20,000 per year on travel.

Appellee based his expense sheet on past expenditures while residing with appellant. His expenses included traveling, phone, cars, and the educational costs of pursuing an advanced degree. Appellee wants to attend graduate school to obtain a doctorate in Psychology in order to pursue his mediation career. He was accepted into a doctoral program in Clinical Psychology at Duquesne University in 1992. The cost of tuition and fees at Duquesne University for the advanced degree is $10,760 per year.

Admittedly, appellant left appellee in May 1990. Appellant testified that she now lives with a boyfriend in a house she had purchased for $675,000, now estimated to be valued at $1,000,000. After the couple's separation, appellee continued to maintain the marital residence and pay bills from the couple's joint bank accounts, spending approximately $200,000. The residence was subsequently sold for $484,000. Appellant then paid three months rent for appellee at an apartment complex.

The master determined that appellee's minimal earning capacity was approximately $25,000 to $30,000 per year and concluded that additional education expenses for appellee were not appropriate. The master recommended awarding appellee $4,500 monthly in pendente lite alimony. Appellee filed exceptions to the master's report and recommendations, challenging the amount of the alimony.

Chancellor's Hearing

On July 14, 1992 the trial court held a hearing on the exceptions. In a written opinion, the chancellor upheld the master's fact-finding: (1) appellant has the ability to contribute to the temporary support of her husband, (2) neither party was employed during the course of the marriage, and (3) appellee is able to be employed. The chancellor, citing Maynard v. Maynard, 42 Md.App. 47, 399 A.2d 900 (1979), recognized that the purpose of alimony pendente lite was based on the need of the economically dependent spouse. The chancellor stated, in passing, that the master's recommendations regarding appellee's pursuit of his doctoral degree was only a recommendation and was not binding on the chancellor. Applying his independent judgment, the chancellor concluded that, while some expenses were excessive, others were within reason in light of the standard of living to which the dependent spouse (appellee) was accustomed.

With regard to appellee's proposed educational program, the chancellor opined:

The Defendant has expressed his intention and desire to matriculate into graduate study at Duquesne University and has projected many of his expenses to reflect that plan. He wants, accordingly, to defer employment decisions pending completion of his doctoral program. Although he is theoretically employable now, he should be able to increase the likelihood of gainful employment if he is permitted to enhance his credentials as he anticipates. His plans may, too, ultimately benefit the Plaintiff, whose exposure to rehabilitative and/or permanent alimony liability potential is considerable.

....

The Court concludes that Defendant should receive, for his living expense, education and suit money, the sum of eight thousand dollars ($8,000.00) per month as alimony pendente lite.

....

As previously mentioned, Master Dugan has recommended that the Defendant abandon his pursuit of a doctoral degree and instead devote himself to employment. This recommendation can only be a recommendation, however, and is not susceptible of being embodied in an order of Court. Moreover, the Court will reject it, for reasons already set forth.

The chancellor thus included the appellee's current and future educational projections in his $8,000 per month alimony pendente lite award.

LEGAL ANALYSIS

Vagueness of Exceptions

We shall consider together the first two issues raised by appellant; however, we first address the last contention presented. She asseverates that the chancellor should have dismissed appellee's exceptions to the master's report and recommendations for vagueness. Appellant relies upon Md.Rule S74A.d, which provides:

Within five days after recommendations are placed on the record or served pursuant to section c of this Rule, a party may file exceptions with the clerk. Within that period or within three days after service of the first exceptions, whichever is later, any other party may file exceptions. Exceptions shall be in writing and shall set forth the asserted error with particularity. Any matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise. [Emphasis added.]

Citing Bris Realty Company v. Phoenix Savings and Loan Ass'n, Inc., 238 Md. 84, 208 A.2d 68 (1955), appellant asserts that appellee's exceptions to the master's report and recommendations "were general in form and failed to point out any finding of fact...