Leineweber v. Leineweber

• Decision Date: 29 October 2014
• Docket Number: No. 1011, Sept. Term, 2013.,1011, Sept. Term, 2013.
• Citation: 220 Md.App. 50,102 A.3d 827
• Parties: John LEINEWEBER v. Michele LEINEWEBER.
• Court: Court of Special Appeals of Maryland

220 Md.App. 50

102 A.3d 827

John LEINEWEBER

v.Michele LEINEWEBER.

No. 1011, Sept. Term, 2013.

Court of Special Appeals of Maryland.

Oct. 29, 2014.

Thomas B. Stahl (Silverstein & Ostovitz, LLC, on the brief), Ellicott City, MD, for appellant.

Steven D. Silverman (Law Offices of Steven D. Silverman, PA, on the brief), Owings Mills, MD, for appellee.

Panel: ZARNOCH, WRIGHT, NAZARIAN, JJ.

Opinion

WRIGHT, J.

Appellant/Cross–Appellee, John Leineweber (“Father”), and Appellee/Cross–Appellant, Michele Leineweber (“Mother”), were divorced in the Circuit Court for Howard County on April 4, 2005. The Judgment of Absolute Divorce granted the parties joint legal custody of their minor children with Mother having primary physical custody. Pursuant to a Mediated Settlement Agreement (“Agreement”), that was incorporated in the Judgment but not merged, Father agreed to “pay to [Mother] the sum of $2,199.00, per month, as and for child support.”

On April 29, 2011, Mother filed a motion to modify custody and child support, which Father moved to dismiss. After hearing the matter on November 30, 2011, the Master in Chancery issued a written report and recommendation to which neither party filed exceptions. On January 3, 2012, the circuit court granted Mother's motion and ordered Father to pay Mother $13,263.00 per month in child support effective December 1, 2011, $14,336.54 for child support-related reimbursements, $110,156.00 for child support arrears, and $43,704.27 for counsel fees.

On October 31, 2012, Father filed a complaint to modify child support which Mother moved to strike. After hearing the matter on April 30, 2013, the Master recommended that the circuit court deny Father's request for modification. On May 9, 2013, Father filed exceptions arguing in pertinent part that “although the Master determined that [Father's] previous deferrals were counted as income in the year in which they were earned ... and [Father] introduced sufficient evidence to identify the amounts which were previously deferred, the Master failed to take into consideration the evidence presented in reaching her recommendation.” On July 3, 2013, the court held a hearing on Father's exceptions and, thereafter, denied Father's request for modification of child support. On July 31, 2013, Father timely appealed. He asks us to determine whether the circuit court abused its discretion in denying his motion to modify child support.¹

On May 16, 2013, prior to the exceptions hearing, Mother filed a motion for counsel fees and costs with request for a hearing, which the circuit court summarily denied on August 26, 2013. On September 4, 2013, Mother filed a motion for reconsideration, which the court also summarily denied on October 15, 2013. Thereafter, Mother noted a cross-appeal wherein she asks us to determine whether “the trial court err[ed] in failing to conduct an evidentiary hearing on [her] claim for an award of counsel and experts [sic] fees and court costs.”

For the reasons that follow, we affirm the circuit court's judgments.

Facts

The parties were married on October 21, 1995, in Baltimore, Maryland, and had two children, Emory and Peyton. At all times of the proceedings in this case, Father worked as an employee of Jones Lang LaSalle, Inc. In 2004, the parties entered into an Agreement, which was incorporated but not merged into the Judgment of Absolute Divorce. The Agreement provided, in pertinent part:

4. CHILD SUPPORT

A. Commencing April 1, 2004 or the date on which this Agreement is signed, whichever later occurs, [Father] shall pay directly to [Mother], for the support and maintenance of the Children, the sum of Two Thousand One Hundred Ninety Nine Dollars ($2,199) per month, payable on the first day of each month....

The parties have agreed to the amount of child support payments set forth above in consideration of each party's rights and benefits under this Agreement, and with due regard for the child support guidelines currently in effect in Maryland. The parties have based this calculation on the following information: [Father's] gross annual income is $150,000; [Mother's] gross annual income is $75,000....

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D. The parties agree that the child support shall be recalculated on April 15th 2006 and that they will recalculate the child support every two years thereafter. The parties shall exchange his and her income tax forms with the other party on or before April 15th of the recalculation year, the child support shall be calculated in accordance with the then current gross incomes of the parties and the child support guidelines in effect at that time. The new child support figure shall be payable as of May 1st of the recalculation year. In addition, if either party has an involuntary twenty five percent (25%) increase or decrease in gross income, the child support shall be recalculated as of the date of such involuntary increase or decrease and the new child support amount shall be due and payable as of the first day of the month immediately following the effective date of such increase or decrease[.]

In 2011, Mother filed a motion to modify custody and child support which the circuit court granted. In ordering the modification, the court adopted the Master's recommendations, which were based on the following factual findings:

33. At the time of the parties' meeting in April 2006, based on the documentation produced by Father, the parties agreed that Father's total income for the year would be $144,000. This figure represented the $125,000 in wages, a projected $15,000 bonus, and some other miscellany. It was not an accurate expression of Father's gross income, and the [M]aster finds that Father was aware of this inaccuracy and that it was intended by Father to mislead Mother for the purpose of reducing his child support obligation.

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44. At no time did Father ever disclose to Mother that his income had dramatically increased from the time child support was originally set. The evidence presented by Father shows the following income: 2004: $150,000; 2005: $291,125; 2006[:] $402,791; 2007: $356,434; 2008: $392,796; 2009: $422,060; 2010: $626,570; and 2011 (as of October): $838,426.

45. Mother's income has also increased, but not as dramatically: 2004: $68,377; 2005: [$]73,189.61; 2006: $82,577; 2007: $87,567; 2008: $90,486; 2009: $94,134; 2010: $95,831.73; 2011: $108,929 (extrapolated from current numbers).

As a result, Father was ordered to pay Mother $13,263.00 per month in child support effective December 1, 2011, $14,336.54 for child support-related reimbursements, $110,156.00 for child support arrears, and $43,704.27 for counsel fees. He did not note an appeal.

On October 31, 2012, Father filed a complaint to modify child support, alleging that “there has been a material change in circumstances” in that his “income has substantially decreased.” In support of his allegation, Father averred:

6. That, at or about the time in the Court's Order, the Court utilized the sum of Eight Hundred Thirty Eight Thousand Four Hundred Twenty Six Dollars and Two Cents ($838,426.02) as 2011 income for [Father].

7. That that figure consisted of, inter alia, a base salary of Two Hundred Five Thousand Dollars ($205,000.00), a bonus of Four Hundred Sixty Seven Thousand One Hundred Twenty Three Dollars ($467,123.00), and [Share Option Plans] vesting of $162,573.20.

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10. That since the aforesaid Hearing, [Father] has received his bonus for 2011 received in 2012 in the amount of One Hundred Thirty One Thousand Six Hundred Forty Three Dollars and Seventy Five Cents ($131,643.75), representing a substantial decrease....

11. That, in addition, [Father] has available to him, through his employer, a deferred compensation plan that provides him with the opportunity to defer income on an annual basis....

12. That, although documentation of current income will appear to be significantly higher than set forth herein, those figures that contribute to the W–2 and paystub numbers are in fact the result of compensation previously deferred.

13. That, although it may appear that those figures should be considered for purposes of determining current child support, the Court has already considered those deferred compensation figures....

14. ... The income for Defendant is now Four Hundred Thousand Nine Hundred Thirty One Dollars and Sixty Cents ($400,931.60).

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17. That, as of January 1, 2012, [Father's] income decreased by more than twenty five percent (25%) from his 2011 income figure utilized by the Court to calculate his 2011 child support obligation.

Thus, Father asked the court to “modify his child support retroactive to January 1, 2012.”

After hearing the matter on April 30, 2013, the Master recommended that the circuit court deny Father's motion based, in relevant part, on the following factual findings, to which Father subsequently excepted:

37. The [M]aster did not agree with [the] analysis [of Mother's accounting expert, that the deferred monies should be treated as income both in the year it was deferred, and in the year it was paid]. In this particular case, the previous deferrals were counted as income in the year in which they were earned for child support. Only the growth on the deferrals can be attributed as income to avoid the “double dipping.” However, comparing the numbers from the [W–2s] and the amounts on the deferred compensation it is not possible to know how much is attributable to actual contribution to the deferred compensation plans and the amount of gain that money earned prior to distribution.

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48. The burden is clearly on [Father] to prove the material change in circumstances in order to merit a modification of child support. [Father] presented numerous documents and reports to demonstrate his income. Clearly his 2012 bonus income is lower than his 2011 bonus income. The dispute between the parties surrounds the treatment of [Father's] receipt in 2012 of the $396,164.24 deferred compensation for child support purposes. If it is not included in income, [Father]

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