Lemley v. Lemley

Decision Date01 September 1994
Docket NumberNo. 259,259
Citation649 A.2d 1119,102 Md.App. 266
PartiesDaniel LEMLEY v. Suzanne LEMLEY
CourtCourt of Special Appeals of Maryland

Nelson R. Kerr, Jr., Rockville, for appellant.

Carole C. Perez, Rockville, for appellee.

Argued before BLOOM, DAVIS and MURPHY, JJ.

DAVIS, Judge.

This appeal by Daniel Lemley is from an order of the Circuit Court for Montgomery County (Turner, J.) that denied exceptions to the report and recommendations of a domestic relations master and affirmed a judgment of absolute divorce in favor of appellee, Suzanne Lemley. Appellant presents the following questions for our review:

I. Did the chancellor err when he made no specific findings concerning the specific allegations of error set out in the appellant's exceptions and pre-hearing memorandum?

II. Did the chancellor err in refusing to permit additional testimony to be adduced at the exceptions hearing?

III. Did the chancellor err with regard to matters of law?

A. Were the facts found by the Master a sufficient basis to show constructive desertion as a matter of law?

B. Should an award of child support be computed on an inflated income, absent voluntary impoverishment?

C. Should no recognition have been given to Dan's non-marital interest in the jointly owned house?

D. Should all contribution have been denied when a pendente lite order diverted Suzanne's child support payment to pay the joint mortgage debt?

E. Should rehabilitative alimony have been awarded?


Suzanne Bastian and Daniel Lemley were married in 1975. Mr. Lemley was thirty-five and had three daughters from a prior marriage. Ms. Bastian was twenty-two and had never been married. Two children were born as a result of this union: Stuart, born in 1981, and Warren, born in 1985.

At the time of the marriage, Mr. Lemley was retired from the District of Columbia Fire Department, having suffered a knee injury in the line of duty, for which he received a disability pension. Mr. Lemley made some effort at being employed during the marriage, including stints in real estate sales and a video filming business, but neither venture was successful. He characterized himself as "Mr. Mom," and it appears that he was the primary caretaker of the children. Mr. Lemley's disability income was supplemented throughout most of the marriage by the earnings from Mrs. Lemley's employment. Mrs. Lemley worked part-time at first, then began to work full-time as a legal secretary in 1989. She was still employed in that capacity at the time of trial.

In May of 1991, Mrs. Lemley left the marital home and took the two boys with her. Mr. Lemley filed a petition for "immediate return of the children, custody and child support." Mrs. Lemley filed a cross-complaint for divorce on grounds of constructive desertion. Mr. Lemley supplemented his earlier pleading with a complaint for divorce on grounds of desertion. In the midst of this imbroglio, Mr. Lemley regained possession of the children through "self-help," and Mrs. Lemley's visitation rights were bitterly contested. An attorney for the children was appointed in July of 1991. On July 5, the court issued an interim order for visitation and child support, whereby Mrs. Lemley was required to pay $948 per month.

A hearing on the merits was begun in December, 1992. It ended in April, 1993 after five days of testimony. Mr. Lemley's attorney withdrew after the fourth day of hearings, and Mr. Lemley proceeded pro se during the fifth and final day. On June 10, 1993, the master issued her report and recommendations, and the court granted Mrs. Lemley's complaint for absolute divorce in a judgment dated June 21. The judgment awarded custody to Mrs. Lemley and ordered Mr. Lemley to pay $673.22 per month in child support. All requests for use and possession, alimony, attorney's fees, and a monetary award were denied.

Mr. Lemley, still proceeding pro se, filed a thirty-three page statement of exceptions to the report and recommendations of the master. Although the exceptions were filed two days late, the chancellor agreed to consider them. 1 Mr. Lemley hired new counsel, and a hearing was held on September 22, 1993. The exceptions were denied in full by an order dated September 28, and Mr. Lemley filed this appeal.


The legal effect of Mr. Lemley's exceptions and the chancellor's handling of the issues raised therein are broadly disputed by the parties. Mr. Lemley contends that the chancellor erred in failing to provide an adequate statement of the reasons for his decision on each exception, as required by Domingues v. Johnson, 323 Md. 486, 593 A.2d 1133 (1991). Mrs. Lemley contends with equal vigor that the issues raised by Mr. Lemley have been waived because the "rambling incoherent exceptions" do not contain the specificity required by MARYLAND RULE 2-541. We consider each of these procedural claims in the context of constructive desertion, then apply the same analysis to the other substantive issues as appropriate.

I. Constructive Desertion

In considering the complaint and cross-complaint for divorce, the master's report states The Master finds from the evidence that: the conduct on the part of [Mr. Lemley] during the marriage, including constant derogatory remarks and criticism of [Mrs. Lemley] in private and public, resulted in anxiety and depression on the part of [Mrs. Lemley] requiring treatment; the problems between the parties gave rise to a reasonable fear on the part of [Mrs. Lemley] for her physical as well as emotional well-being; and it was necessary for her to leave the home to protect her physical and emotional health.

The order and opinion of the chancellor, issued after the exceptions hearing, concurs with that conclusion:

The Court finds that the facts contained in the Report and Recommendations of the Domestic Relations Masters' Office are in fact well founded from the testimony presented and although the Court is not bound to accept the recommendation of the Master's Office, in this case he has used his own independant [sic] review of the facts and finds that a divorce to Mrs. Lemley is justifiable.

Mr. Lemley contends that he took specific exceptions to the fact-finding of the master, and that the chancellor erred when he made no specific findings concerning those allegations of error. In light of our decision in Bagley v. Bagley, 98 Md.App. 18, 632 A.2d 229 (1993), cert. denied, 334 Md. 18, 637 A.2d 1191 (1994), we must agree. We vacate the judgment of divorce and remand for a more definite statement from the court. Mr. Lemley also contends that the facts found by the master are legally insufficient to support a judgment of divorce on grounds of constructive desertion. After addressing the particularity of his exceptions and the appropriate standard of review by the chancellor, we offer guidance on the substantive issue raised by Mr. Lemley.

Particularity.--While the role of masters generally is governed by Rule 2-541, Rule S74A sets forth specific standards that apply to the use of masters in a domestic relations case. Rule S74A(d) states in part:

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.

Compare Rule 2-541(h)(1) (containing identical language). If the court is reasonably able to rule on the exception, and the opposing party is reasonably able to frame a response, then the exception is sufficiently "particular" to satisfy the requirements of the Rule. James v. James, 96 Md.App. 439, 449, 625 A.2d 381 (1993). Cf. Pfoff v. State, 85 Md.App. 296, 301-02, 583 A.2d 1097 (1991), and G & H Clearing and Landscaping v. Whitworth, 66 Md.App. 348, 354-55, 503 A.2d 1379 (1986) (both discussing vagueness in context of a complaint).

While Mrs. Lemley complains about Mr. Lemley's "rambling incoherent exceptions," her answer to those exceptions directly addressed the main issues raised in this appeal, and we cannot say that the form of the exceptions prevented Mrs. Lemley from framing an adequate response. Mr. Lemley's thirty-three page statement of exceptions is indeed rambling, but it nonetheless contains many specific allegations of error that satisfy the requirements of Rule S74A(d). Mr. Lemley's exceptions include the following statements, which we number for the sake of convenience:

1) ... [T]he Master erred when she said she finds from the evidence of improper conduct on the part of the plaintiff during the marriage including "constant derogatory remarks and criticism of the defendant in private and public, resulted in anxiety and depression requiring treatment."

There was absolutely no evidence.... [at page 2]

2) The statement that this conduct, which is unspecified, resulted in a mental condition which required treatment, is unsubstantiated. There was never a diagnosis presented as to any mental condition or illness that required treatment. [at page 3]

3) There was never an incident in the entire marriage that would cause a reason for fear. [at page 4]

The master's recommendation with regard to constructive desertion is grounded in factual findings that Mr. Lemley engaged in certain behaviors, and that those behaviors caused fear, anxiety and depression in Mrs. Lemley. Mr. Lemley plainly contests those findings. While Mrs. Lemley and the chancellor may have preferred that Mr. Lemley omit needless words, number his exceptions, and refrain from arguing about evidence not in the record, we could not ask for a more direct assignment of error.

Review by the chancellor.--The sometimes troubled relationship between master and chancellor has been the subject of several recent opinions by this Court and the Court of Appeals. The difficulty arises in large part from the role that masters play in our judicial system. As we explained in Ellis v. Ellis, 19 Md.App. 361, 365, 311 A.2d...

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